[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 18-10151

D.C. Docket No. 2:15-cv-02193-LSC

GREATER BIRMINGHAM MINISTRIES, 

ALABAMA STATE CONFERENCE OF THE NATIONAL ASSOCIATION 

FOR THE ADVANCEMENT OF COLORED PEOPLE,

GIOVANA AMBROSIO, 

ELIZABETH WARE, 

SHAMEKA HARRIS,

 Plaintiffs - Appellants,

versus

SECRETARY OF STATE FOR THE STATE OF ALABAMA, 

 Defendant - Appellee.

Appeal from the United States District Court

for the Northern District of Alabama

(July 21, 2020)

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Before BRANCH and ED CARNES, Circuit Judges, and GAYLES,* District 

Judge.

BRANCH, Circuit Judge:

At the end of 2015, advocacy groups and individual Plaintiffs filed this 

lawsuit against Alabama’s Secretary of State, John Merrill, challenging Alabama’s 

2011 Photo Voter Identification Law (hereinafter, the “voter ID law”), passed by 

the Alabama legislature as House Bill 19 and codified at Ala. Code § 17-9-30. The 

voter ID law took effect in June 2014 and requires all Alabama voters to present a 

photo ID when casting in-person or absentee votes. Plaintiffs allege the law has a 

racially discriminatory purpose and effect that violates the United States 

Constitution and the Voting Rights Act (the “VRA”). Specifically, Plaintiffs claim 

the law violates the Fourteenth and Fifteenth Amendments of the Constitution;

Section 2 of the VRA, 52 U.S.C. § 10301; and Section 201 of the VRA, 52 U.S.C. 

§ 10501. Based on these allegations, Plaintiffs seek declaratory and injunctive 

relief to prevent the enforcement of Alabama’s voter ID Law. Secretary Merrill 

denies that the law is discriminatory, arguing that Alabama accepts so many types 

of acceptable IDs that most Alabamians already possess photo ID and voters who 

do not have one can obtain one easily. 

* Honorable Darrin P. Gayles, United States District Judge for the Southern District of Florida, 

sitting by designation.

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Secretary Merrill filed a motion for summary judgment on all counts, while

Plaintiffs moved for partial summary judgment on one claim and one issue.

1 The 

district court granted Secretary Merrill’s motion and Plaintiffs-Appellants timely 

appealed.

Because Plaintiffs have failed to identify any genuine disputes of material 

facts and because no reasonable factfinder could find, based on the evidence 

presented, that Alabama’s voter ID law is discriminatory, we affirm the district 

court’s order granting summary judgment in favor of the Secretary of State for the 

State of Alabama. 

I. BACKGROUND

This case was filed by Greater Birmingham Ministries and the Alabama 

State Conference of the National Association for the Advancement of Colored 

People, along with Giovana Ambrosio, Shameka Harris, Debra Silvers, and 

Elizabeth Ware (collectively, “Plaintiffs”) against John Merrill, the Secretary of 

State for the State of Alabama. In summarizing the facts of this case, we pull 

directly from—and oftentimes quote verbatim—the “Undisputed Material Facts” 

1 Plaintiffs requested summary judgment on their Section 201 claim. Plaintiffs also argued that 

the “facts show that there is a statistically significant racial disparity” between the ID possession 

rates for voters of color and white voters in Alabama, and requested “partial summary judgment 

on this issue, which is a discrete element of Plaintiffs’ claims.”

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identified by the parties in their corrected Joint Status Report filed with the district 

court. 2

A. Historical Background

Since the 1990s, there have been concerted efforts in Alabama to pass a 

voter ID law that addresses voter fraud. For the purposes of this case, the parties 

agree that cases of proven in-person impersonation voter fraud in Alabama are 

rare. However, in the mid-1990s, Alabama grappled with some recent, highprofile, and well-documented cases of absentee voter fraud that captured the public 

attention of Alabamians. These instances of voter fraud were summarized by a July 

1996 article in The Birmingham News.

3

Various citizen groups formed to spread the word about the need for a photo 

ID law to combat voter fraud.4 Alabama and the federal government worked 

together to investigate and prosecute cases of voter fraud in absentee voting. The 

investigation uncovered that, for example, voters would sign absentee ballot2 Although “the parties dispute the relevance and materiality of some of the facts contained 

herein,” the parties have agreed that these facts are undisputed. Greater Birmingham Ministries 

v. Merrill, 284 F. Supp. 3d 1253, 1257 n.2 (N.D. Ala. 2018). 

3 At least some newspapers were supportive of efforts to pass a voter ID requirement in the late 

1990s.

4 The Honest Election Coalition was formed and “produced a 10-minute video entitled 

‘Something is Wrong in Alabama.’ Through the video, . . . the Coalition described some of the 

voter fraud allegedly occurring in Alabama and argued for legislative reforms.” The Coalition 

pushed for legislative reforms and, “[i]n 1996, the Alabama Legislature passed half of the Honest 

Election Coalition’s proposed election reform package by altering rules concerning absentee 

ballots; the Legislature failed to pass a voter ID law. The Honest Elections Coalition continued to 

support a voter ID law.” Another grassroots citizen group, Citizens for a Better Greene County, 

also focused on fighting voter fraud. 

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related paperwork without ever marking the ballot, and, in a handful of instances, 

the voters were not involved in the process at all and their signatures were forged.

Sometimes voters would be convinced, threatened, or bribed to give up their ballot 

materials and sometimes voters would sign the absentee ballot affidavits without 

marking the ballots. One investigation also revealed there were people at the polls 

on election day with a list of voters whose ballots had been fraudulently cast and 

they would chase away these voters when they came to the polls to cast their 

ballots.

Between the early 1990s and 2003, several voter ID bills were proposed in 

the Alabama legislature and failed. In 2003, the Alabama legislature successfully 

enacted a voter ID law that required voters to provide “current valid photo 

identification” or “a “copy of a current utility bill, bank statement, government 

check, paycheck, or other government document that shows the name and address 

of the voter” (otherwise referred to as “non-photo ID”).

5 The 2003 law also 

5 The 2003 law provided “[t]he term ‘other government document’ may include, but is not 

limited to, any of the following: a. A valid identification card issued by a branch, department, 

agency, or entity of the State of Alabama, any other state, or the United States authorized by law 

to issue personal identification. b. A valid United States passport. c. A valid Alabama hunting or 

fishing license. d. A valid Alabama permit to carry a pistol or revolver. e. A valid pilot’s license 

issued by the Federal Aviation Administration or other authorized agency of the United States. f. 

A valid United States military identification card. g. A certified copy of the elector’s birth 

certificate. h. A valid Social Security card. i. Certified naturalization documentation. j. A 

certified copy of court records showing adoption or name change. k. A valid Medicaid card, 

Medicare card, or an Electronic Benefits Transfer card (formerly referred to as a ‘food stamp 

card’).” 

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included a “positively identify provision” (“PIP”). This provision provides that a 

registered voter who lacks the photo ID required to vote in person on election day 

may cast a regular ballot if she or he is positively identified by two election 

officials as a voter on the poll list who is eligible to vote and the two election 

officials sign a sworn affidavit so stating. Notably, the 2003 law (which included 

the PIP) was precleared by the Department of Justice; the PIP was cleared as an 

acceptable “fail-safe” provision.6

One Alabama State Senator, Larry Dixon, sponsored several unsuccessful 

voter ID bills during his tenure in the Alabama legislature from 1995-2010. 

Senator Dixon was seen as a leader on the photo ID issue by proponents of the 

requirement. In 1996, Senator Dixon stated that “the fact you don’t have to show 

an ID is very beneficial to the black power structure and the rest of the 

Democrats.” Later, in 2001, Senator Dixon said that voting without photo IDs 

“benefits black elected leaders, and that’s why [black legislators are] opposed to 

it.” Years later, in 2010, in a meeting with several other legislators, State Senator 

Scott Beason recorded Senator Dixon saying: “Just keep in mind if [a progambling] bill passes and we have a referendum in November, every black in this 

6 At that time, Section 5 the Voting Rights Act required Alabama to seek preclearance for any 

change in voting requirements from either the U.S. Attorney General or a three-judge court in the 

United States District Court for the District of Columbia. See Shelby Cty. v. Holder, 570 U.S. 

529, 544 (2013). The U.S. Attorney General precleared Alabama’s 2003 voter ID law, including 

the positively identify provision, and that law remained in effect until 2014 when the 2011 law 

went into effect. See infra note 20.

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state will be bused to the polls. And that ain’t gonna help. . . Every black, every 

illiterate [will] be bused on HUD financed buses.” In a separate recorded meeting, 

Senator Beason referred to people who are black as “Aborigines.” 7 Senator Dixon 

retired in 2010 and was not in the legislature when the voter ID law at issue in this 

case was passed in 2011.8

Between 2003 and the 2011 passage of the now-challenged Alabama law, a 

plethora of other states also passed voter ID laws. By 2000, fourteen other states 

required some kind of ID in order to vote. In 2005, the bipartisan Commission on 

Federal Election Reform—chaired by former President Jimmy Carter and former 

U.S. Secretary of State James Baker—recommended that states move toward 

implementing a voter ID requirement to deter and detect fraud and to inspire public 

confidence in elections. See Report of the Commission on Federal Election 

Reform, Building Confidence in U.S. Elections § 2.5 (Sept. 2005). The Report 

noted that twenty-four states required identification for voters, “with some systems 

likely to restrict registration.” The report nevertheless recommended “a photo ID 

system for voters designed to increase registration with a more affirmative and 

aggressive role for states in finding new voters and providing free IDs for those 

7 The Statement of Undisputed Facts submitted by the parties does not identify when these 

comments were made, nor do we know what bill Senator Beason may have been discussing.

8 Because Senator Dixon was not a member of the Alabama legislature at the time of HB19’s 

passage, we generally agree with Secretary Merrill that the facts about Senator Dixon are 

irrelevant and immaterial. We include them here, however, because they are a linchpin of 

Plaintiffs’ discriminatory intent argument.

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without driver’s licenses.” Id. at ii (Letter from the Co-Chairs). The Commission 

recommended states reach out to “non-drivers by providing more offices, including 

mobile ones, to register voters and provide photo IDs free of charge.” Id. at iv 

(Executive Summary).

In 2008, the Supreme Court decided Crawford v. Marion County Election 

Board, 553 U.S. 181 (2008), which upheld an Indiana voter ID law requiring the

presentation of a government-issued photo ID in order to vote. The Supreme 

Court’s decision in Crawford generally affirmed the facial validity of voter ID 

laws.

On June 25, 2013, the Supreme Court issued its opinion in Shelby County, 

Alabama v. Holder, 570 U.S. 529 (2013), declaring unconstitutional Section 4(b) 

of the Voting Rights Act, 52 U.S.C. § 10303(b), which is the coverage provision of 

Section 5 of the Act. 570 U.S. at 557. Without Section 4(b), Section 5 has no 

present effect. Thus, the Shelby County decision resulted in Alabama no longer 

being subject to the preclearance requirement. The day after Shelby County was 

decided, the Alabama Attorney General and Secretary of State announced that the 

result of the Shelby County ruling was that laws like Alabama’s voter ID law could 

move forward without preclearance. The 2011 Alabama voter ID law went into 

effect in 2014, as planned. 

B. The Passage of House Bill 19

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The 2011 voter ID law began as House Bill 19 and was pre-filed with the

Alabama legislature on February 25, 2011. HB19 was sponsored by Representative 

Kerry Rich.9 Senator Beason was a co-sponsor of Senate Bill 86, the Senate’s 

identical companion bill to HB19 during the 2011 legislative session.

During the legislative session, HB19 was considered by the House Standing 

Committee on Constitution, Campaigns, and Elections. The committee acted 

favorably on the bill, recommending a substitute and an amendment. On March 22, 

2011, the House considered whether to approve the substitute and the amendment. 

In the end, the House adopted the substitute and rejected the amendment. The 

parties dispute details about the ultimate passage of HB19, but it is undisputed that: 

(1) the Senate invoked cloture,

10 (2) not a single black senator who was present 

voted in favor of HB19, (3) the House passed it by a largely party-line vote of 64-

31, and (4) the Senate passed the bill by a straight party-line vote. Likewise, the 

parties differ in their portrayal of how cloture was used regarding HB19, but it is 

9 During the 2011 legislative session, Representative Rich also sponsored an immigration bill, 

HB56. HB56 contained a proof of citizenship requirement for voter registration, although anyone 

already registered was not required to provide proof of citizenship. During his opening 

statement, Representative Rich referenced “illegal immigrants” and “Hispanics” when discussing 

the “kinds of social and economic problems” that HB 56 purportedly sought to address. HB56 

was passed on June 2, 2011, one week prior to the passage of HB19. Several provisions of House 

Bill 56 were preempted by federal law, while one section was found to violate the equal 

protection clause. See, e.g., United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012); see also 

Hispanic Interest Coal. of Alabama v. Governor of Alabama, 691 F.3d 1236, 1249 (11th Cir. 

2012). The validity of HB56 is not at issue in this case.

10 Cloture is “[t]he procedure of ending debate in a legislative body and calling for an immediate 

vote.” Black’s Law Dictionary (10th ed. 2014). In Alabama, when cloture is invoked, the Senate 

has to wait (typically, for 20 minutes) before voting.

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clear that cloture was common during the 2011 session.11 The record shows that 

there were 36 cloture votes in 2011, which broke the record for the number of

cloture votes during an Alabama legislative session.

The Alabama House of Representatives passed HB19, with black legislators 

raising concerns about the bill being a “step back to the days of poll taxes and 

literacy tests.”12 HB19 then moved to the Alabama Senate for consideration and 

passage. HB19 was passed on June 9, 2011, the last day of the legislative session.

Governor Robert Bentley signed HB19 into law on June 15, 2011.

C. Provisions and Operations of Alabama’s Current (2011) Voter ID 

Law

Alabama’s current (2011) voter ID law requires voters to present a photo ID 

in order to vote. Seven categories of photo IDs may be used: (1) a valid Alabama 

driver’s license or nondriver ID card;13 (2) a valid Alabama photo voter ID; (3) a 

11 The parties agree that cloture was frequently used by the Alabama Senate during the 2011 

session and that cloture is “invoked for controversial and noncontroversial bills.” But Plaintiffs 

allege the Black Caucus was prevented from speaking against HB19 or proposing amendments. 

After the Senate invoked cloture, Plaintiffs contend that the Republicans held the microphone and 

blocked all opponents from speaking, refusing to let the seven black and two white photo ID 

opponents speak out against the bill. 

12 The concerns raised by black legislators throughout the 1990s and 2000s—that the voter ID 

bill would be discriminatory—echo those raised by Plaintiffs today.

13 With respect to the issuance of Alabama driver’s licenses and nondriver IDs, the Alabama Law 

Enforcement Agency (“ALEA”), formerly the Alabama Department of Public Safety, handles 

initial issuances of driver’s licenses and nondriver IDs for all Alabamians. Renewals and 

duplicates are also available in every county in Alabama from a judge of probate, a license 

commissioner, or a revenue commissioner. Renewals and duplicates are also available from self–

service kiosks or the Alabama Online Driver License Issuance System. A grace period of 60 days 

after expiration of a driver’s license exists for the purpose of driver’s license renewal and the 

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valid U.S. passport; (4) a valid employee ID card containing a photograph of the 

voter and issued by any branch, department, agency, or entity of the federal, state, 

or local government; (5) a valid student or employee ID card containing a 

photograph of the voter and issued by a public or private college, university, or 

postgraduate technical or professional school in Alabama; (6) a valid U.S. military 

ID card containing a photograph of the voter; or (7) a valid tribal identification 

card containing a photograph of the voter. Ala. Code § 17-9-30 (a)(1)-(7).14

driver’s license remains valid during that time. Under certain conditions, a driver’s license that 

has been expired for three years or less can be renewed without going to an ALEA office. 

Persons 62 and older may obtain a “lifetime” nondriver ID that does not expire. There is a fee to 

obtain a driver’s license. In addition to paying a fee for the driver’s license, a person must 

present various forms of documentation to receive a driver’s license, and some of those 

documents have fees associated with obtaining copies of them.

14 The text of the law states: 

(a) Each elector shall provide valid photo identification to an appropriate election official 

prior to voting. A voter required to show valid photo identification when voting in person 

shall present to the appropriate election official one of the following forms of valid photo 

identification:

(1) A valid Alabama driver’s license or nondriver identification card which was 

properly issued by the appropriate state or county department or agency.

(2) A valid Alabama photo voter identification card issued under subsection (f) or 

other valid identification card issued by a branch, department, agency, or entity of 

the State of Alabama, any other state, or the United States authorized by law to 

issue personal identification, provided that such identification card contains a 

photograph of the elector.

(3) A valid United States passport.

(4) A valid employee identification card containing the photograph of the elector 

and issued by any branch, department, agency, or entity of the United States 

government, this state, or any county, municipality, board, authority, or other 

entity of this state.

(5) A valid student or employee identification card issued by a public or private 

college, university, or postgraduate technical or professional school located within 

the state, provided that such identification card contains a photograph of the 

elector.

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Alabama’s photo ID requirement applies to in-person and absentee voters. Ala. 

Code § 17-9-30(b).15 Voters who vote absentee are required to include a photocopy 

of their photo IDs, in a separate envelope, when they mail in their absentee ballots.

See Ala. Code § 17-11-9.

The voter ID law also provides for the Alabama Secretary of State to issue 

photo voter ID cards specifically for the purposes of voting. Ala. Code § 17-9-

30(a)(2) & (f). The photo voter ID card is meant only for registered voters who do 

not have one of the other forms of photo ID accepted under the statute. There are 

several options for an Alabama would-be voter to obtain a photo voter ID: the 

Secretary of State’s office, a board of registrars’ office, or the Secretary of State’s 

“mobile unit,” which will travel to an individual’s home if he or she lacks 

transportation. Secretary Merrill issued press releases informing voters about the 

photo ID requirement and announcing the mobile unit’s upcoming locations. To 

(6) A valid United States military identification card, provided that such 

identification card contains a photograph of the elector.

(7) A valid tribal identification card containing a photograph of the elector.

Ala. Code § 17-9-30 (a)(1)-(7).

15 We note that Section 17-9-30 was amended in 2019 to require absentee voters to present a 

photo ID at the time of applying for an absentee ballot rather than at the time of submitting the 

absentee ballot. Ala. Code § 17-9-30(b). In addition, a new subsection (c) provides for making 

an absentee ballot provisional if the voter has failed to provide the photo ID with the absentee 

ballot application “after the eight day prior to the election.” Ala. Code § 17-9-30(c). These 

amendments have no effect on our analysis. 

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obtain a photo voter ID card, voters must sign a form, under penalty of perjury, 

that they do not currently possess any form of valid photo ID.16

There is no existing list of all forms of documents that can be used to get a 

photo voter ID card. Examples of non-photo ID documents that can be used to 

obtain a photo voter ID card include: a birth certificate, social security document, 

hospital or nursing home record, marriage record, census record, military record, 

Medicare or Medicaid document, certificate of citizenship, official school record,

or official school transcript. A selective service card or documentation is also

acceptable for issuance of a photo voter ID. This information has been conveyed to 

Alabamians through educational programming (i.e., billboards, radio 

advertisements, television advertisements, mailers) developed by the Secretary of 

State’s office. Information is also available on the Secretary of State’s website, 

alabamavoterid.com.

17

There may be fees to obtain copies of documents that may be used to obtain 

a photo voter ID card. The documents of broadest applicability that serve to

confirm a voter’s name and date of birth are a birth certificate and/or marriage 

license. A copy of a birth certificate or marriage license costs $15.00 each.

16 This requirement was part of the implementing rules promulgated by former Secretary of State 

Jim Bennett in 2013. See ALA. ADMIN. CODE 820-2-9-.03 (2013).

17 This web ID automatically redirects the user to https://www.sos.alabama.gov/alabamavotes/photo-voter-id. 

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Accordingly, although the law did not require him to do so, the Secretary of State 

entered into a Memorandum of Understanding (“MOU”) with the Alabama 

Department of Public Health (“ADPH”) providing that an official issuing a photo 

voter ID card can request a copy of a voter’s Alabama birth or marriage certificate, 

for purposes of issuing the ID, at no cost to the voter. Another MOU was reached 

among the Secretary’s office, ADPH, and ALEA that allowed ADPH to perform 

searches for birth and marriage certificates and to bill the Secretary for the search.

Pursuant to the MOUs, ADPH processed 164 requests for free birth or marriage 

certificates between March 2014 and September 2014, 87 in Fiscal Year 2015 

(October 2014 through September 2015), 89 in FY2016, and 78 for October 2016 

through July 2017.

Likewise, the Secretary of State entered into an MOU with ALEA and its 

predecessor, whereby if a person seeks an ALEA nondriver ID for the purposes of 

voting, the fee for the nondriver ID will be paid by the Secretary. ALEA has 

invoiced the Secretary for 33 voters who requested a nondriver ID for voting 

purposes. In sum, a voter who lacks an appropriate form of ID may acquire the 

documents needed to obtain a voter ID for no fee. 

Furthermore, an Alabama voter may use an application to register to vote or 

a request to update a voter registration record to prove the voter’s identity and 

receive a voter ID card. Persons already registered to vote may submit a voter 

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registration update form,18 even if nothing needs updating, and prove their identity 

with that update form. 

The Secretary contracted with Police & Sheriff’s Press, Inc. (“PASP”) to 

produce the voter ID cards. When a voter applies for a voter ID card, a temporary 

voter ID card is issued on the spot. The permanent card is mailed to the voter, 

normally within 10 business days. PASP began printing Alabama photo voter ID 

cards in February 2014 and continues to do so today. PASP printed 5,294 Alabama 

photo voter ID cards in 2014, another 2,316 cards in 2015, another 4,429 in 2016, 

and 1,403 in 2017 (through June 30). As of June 30, 2017, Alabama had issued 

13,442 photo voter ID cards to voters. The Secretary of State pays PASP $8.00 per 

card to print photo voter IDs. As of June 2017, the Secretary of State had paid 

more than $280,000 to PASP for card printing, other services, and equipment 

related to the photo voter ID program.

Voter registration cuts off on the fifteenth day before each election, but the 

Boards of Registrars’ offices are required to stay open during the 14-day period 

leading to each election and on election days. Ala. Code § 17-3-50 (“The boards of 

registrars in the several counties of the state shall not register any person as a 

qualified elector within 14 days prior to any election; provided, that the boards 

shall maintain open offices during business days in such 14-day period and on 

18 Voters in Alabama are currently required to update their registration when they move.

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election day during the hours of voting.”). Photo voter IDs are available to the 

voter at the Boards of Registrars’ offices on election days.

If, on election day, an Alabama voter arrives at a polling place without a 

photo ID, he or she can (1) vote a provisional ballot that can be cured by bringing a 

photo ID to the registrars’ office by the Friday following the election, or (2) utilize 

the law’s “positive identify provision” or “PIP” to cast a vote via regular ballot.19

HB19’s “positively identify provision” states: 

In addition, an individual who does not have valid photo identification 

in his or her possession at the polls shall be permitted to vote if the 

individual is positively identified by two election officials as a voter on 

the poll list who is eligible to vote and the election officials sign a sworn 

affidavit so stating.

Ala. Code § 17-9-30(e). 

Since June of 2014, the voter ID law has been enforced in every election.20

Alabama has advertised the voter photo ID requirement and the availability of free 

19 HB19 contains the same pre-cleared PIP included in the 2003 law. Preclearance is no longer 

required, however. See infra note 20. 

20 The 2011 voter ID law was always scheduled to go into effect in June 2014. The gap in 

passage and implementation occurred because the legislature anticipated challenges to the law 

and needed time to obtain preclearance. At the time of HB19’s passage, Alabama was still a 

“covered” State under Section 5 of the Voting Rights Act and thus could not enforce the law 

without first obtaining preclearance from the U.S. Department of Justice or a federal three-judge 

court. However, on June 25, 2013, the Supreme Court issued its opinion in Shelby County, 

declaring unconstitutional Section 4(b) of the Voting Rights Act, which is the coverage provision 

of Section 5 of the Act. 570 U.S. at 540-51. As a result of the Shelby County decision, Alabama 

is no longer subject to preclearance before implementing a change in laws that impact voting 

rights. Although preclearance is no longer required, HB19 was written to accommodate this past 

requirement and was not slated to become operative until the first statewide primary in June 

2014.

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voter IDs. During the implementation of the law, Alabama “spent substantial time 

and resources” on an education program that included billboards and radio and 

television advertisements.21 After taking office, Secretary Merrill budgeted roughly 

$350,000 for advertising per election (approximately one third of the previous 

administration’s expenditures). Despite decreased funding, the Secretary’s office 

continues to promote the law. In January 2017, Secretary Merrill mailed a postcard 

to the address on file for every registered voter. In part, the post card said: 

“Remember, you need a valid photo ID to vote, unless exempt by law. If you do 

not have one, you may obtain a free photo voter ID at any Board of Registrars’ 

office. To learn more, please visit our website at alabamavoterid.com, or contact 

your registrars.” Overall, between October 2013 and January 2017, the Secretary 

of State’s office has spent more than $2.6 million advertising Alabama’s voter ID 

law.

Secretary Merrill’s predecessor, Jim Bennett, was largely responsible for the 

issuance of administrative rules governing the law’s PIP and for the 

implementation of Alabama’s voter ID law in 2014. He is also the creator of the 

mobile unit program, which was implemented in 2014. The schedule for the 

mobile unit was developed after contacting every mayor’s office in the State of 

21 Former Alabama Deputy Secretary of State, Emily T. Marsal (who served under former 

Alabama Secretary of State Jim Bennett) testified about the steps taken by Bennett’s office to 

implement the law and educate Alabamians about its requirements.

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Alabama. The mobile unit went to every county in the State, and it went to some 

counties more than once. It was stationed at a variety of locations, including 

churches, libraries, and malls. In fact, the Secretary of State’s office took 

suggestions on times and places from Plaintiff Greater Birmingham Ministries. 

Voters may request, through the Secretary of State’s website, that the mobile unit 

come to their home or group to issue photo voter ID cards.

Secretary of State Merrill continued the mobile unit program. He solicited 

input on the mobile unit’s schedule from the judges of probate,22 as well as from 

members of the Alabama House and the Alabama Senate. The mobile unit goes to 

a location in the county that has been recommended and is expected to be a hightraffic area.23 The office tries not to send the mobile unit to the same places every 

year.

The mobile unit has made more than 350 visits across the state since 2014,

and has issued more than 850 photo voter IDs. As of April 12, 2017, 7% of mobile 

unit locations were within a quarter mile of a registrars’ office, 11% were within a 

half-mile of a registrars’ office, and 15% were within a mile of a registrars’ office. 

22 Secretary Merrill sought their input because judges of probate are the chief elections officials 

of the county. 

23 The mobile unit has been to a plethora of Alabama events throughout the state: the Chilton 

County Peach Festival in Clanton; the Peanut Butter Festival in Brundidge in Pike County; the 

Peanut Festival in Dothan in Houston County; the Magic City Classic in Birmingham (where 

Alabama State University and Alabama A&M University play football); the Tomato Festival in 

Slocomb in Geneva County; and the Rattlesnake Rodeo in Opp in Covington County.

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Ninety-three percent of mobile unit locations were more than a quarter mile from a 

registrars’ office, 89% were more than a half-mile from a registrars’ office, and 

85% were more than a mile from a registrars’ office. As of April 12, 2017, on 

average, the mobile unit locations were open for 3.6 hours a day—in 20.4% of 

visits, the mobile unit was open for 2 hours or less, and in 82.6% of visits they 

were open for four hours or less. 

As of April 12, 2017, the number of home visits made by the mobile unit 

was fewer than ten. One of the mobile unit home visits happened after a member of 

the legislature contacted Secretary Merrill to assist a constituent, while another 

visit occurred for a plaintiff in this litigation. The Secretary has implemented a 

protocol whereby the voter is asked questions about his or her transportation 

options before a home visit is scheduled. Nonetheless, in his deposition, Secretary 

Merrill has made clear that if the voter says he has no one to give him a ride, the 

voter is taken at his word: “Now, if they choose not to be honest, then we’ll accept 

it.” He emphasized that “we’re not going to—nobody is ever going to be denied a 

voter ID.” As a result, the law accommodates voters who lack transportation to 

obtain an ID. 

Lastly, the parties presented differing expert evidence that indicates 

somewhere between 32,704 and 118,152 Alabamian voters lack a form of photo ID 

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required by the voter ID law24 or lack a “useable ID” (meaning their ID is, for 

example, expired and not valid).25 Regardless of which number is used, this 

number accounts for less than 2% of Alabamians who are eligible to vote.

Plaintiffs’ expert expressed an opinion that, overall, an estimated 1.67% of 

registered voters in Alabama have no valid photo ID that is accepted under the 

voter ID law. Broken down by race, Plaintiffs’ expert concluded that 1.37% of 

white voters, 2.44% of black voters, and 2.29% of Latino voters26 do not possess a 

photo ID. Secretary Merrill’s expert found that 1.03% of registered Alabama 

voters, overall, lack a photo ID: 0.87% of white voters, 1.44% of black voters, and 

1.26% of Latino voters. Put differently, Plaintiffs’ expert concluded that an 

estimated 98.33% of registered Alabama voter possess a valid photo ID, while 

Secretary Merrill’s expert estimated that 98.97% of registered Alabama voters 

possess a valid photo ID. 

24 Plaintiffs’ expert expressed an opinion that an estimated 50,106 (1.67%) registered voters in 

Alabama have no valid photo ID that is accepted under the voter ID law. Secretary Merrill’s 

expert disagrees, finding instead that an estimated 32,704 registered Alabama voters lack an 

acceptable photo ID.

25 Plaintiffs’ expert estimated that an additional 68,046 voters have what he called “contestable” 

photo IDs, or IDs that have material discrepancies between the name or other identifying 

information on the voter roll such that they may be contested at the polls. When added to the 

initial 50,106 estimate, Plaintiffs cite an estimated 118,152 registered voters who have either no 

photo ID or have a “contestable” photo ID. Defendants unequivocally dispute this estimate, 

arguing that “[n]othing in the record shows that a single Alabama voter has ever been unable to 

vote because information on the ID does not match the name in the voter registration database.”

26 Because Plaintiffs have used the term “Latino” to refer to Hispanic voters in Alabama, for 

clarity, this Court will also do so.

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D. The Parties27

1. Greater Birmingham Ministries 

Plaintiff Greater Birmingham Ministries (“GBM”) was founded in 1969 in 

response to the human rights and justice needs of the residents of the greater 

Birmingham, Alabama, area. GBM has participated in lawsuits intended to 

accomplish its social justice objectives.

2. Alabama State Conference of the National 

Association for the Advancement of Colored People

Plaintiff Alabama State Conference of the National Association for the

Advancement of Colored People (“the Alabama NAACP”) is a state subsidiary of 

the National Association for the Advancement of Colored People, Inc. The 

Alabama NAACP is the oldest and one of the most significant civil rights 

organizations in Alabama, and it works to ensure the political, educational, social, 

and economic equality of black and all other Americans. Toward those ends, the 

Alabama NAACP has participated in numerous lawsuits intended to protect the 

right to vote, regularly engages in efforts to register and educate black voters, and 

encourages black voters to engage in the political process by turning out to vote on 

election day.

27 Former Plaintiff Debra M. Silvers passed away in January 2017. In March 2017, Plaintiffs 

filed a Notice of Death with the district court. At the time of her passing, she was a Plaintiff in 

this lawsuit, but is no longer. Accordingly, we do not include her in our summary of the 

individual Plaintiffs. 

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3. Giovana Ambrosio

Plaintiff Giovana Ambrosio is a lawfully registered Latino voter, U.S. 

citizen, and lifelong resident of Franklin County, Alabama. Ms. Ambrosio was a 

high school senior when she became a plaintiff. She rode the bus to school and 

stayed after school for extracurricular activities two to five days a week. Ms. 

Ambrosio was registered to vote prior to the March 1, 2016 primary, but the 

Secretary maintains that she was not registered in time to vote in that election. Ms. 

Ambrosio went to the polls for the March 1, 2016 primary, but was not personally 

acquainted with the election officials at her polling place that day. Ms. Ambrosio 

did not have an ALEA-issued driver’s license, or any of the photo IDs required to 

vote pursuant to the voter ID law. 

For the entirety of 2016, the closest driver’s license-issuing ALEA office to 

Ms. Ambrosio’s home was only open one day per month, during the hours that Ms. 

Ambrosio typically spent in classes or in school-sponsored and school-supervised 

extracurricular activities. The next closest ALEA office to Ms. Ambrosio was in 

Sheffield, which is an approximately 45-mile roundtrip drive. The Sheffield office 

is open from 8:00 am to 4:30 pm on weekdays. Ms. Ambrosio does not own a car 

and, although her parents have access to vehicles, both parents work full time and 

were unable to drive her to Sheffield during the ALEA office’s normal hours.28 To 

28 At the time of her August 2016 deposition, Ms. Ambrosio did not know how to drive a car.

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the best of Ms. Ambrosio’s knowledge, there is no public transportation from 

Franklin County to Sheffield, which is in adjoining Colbert County.

However, the board of registrars’ office at the Franklin County courthouse is 

approximately one mile from Ms. Ambrosio’s home. Ms. Ambrosio also knew 

about the mobile ID unit.

Ms. Ambrosio started classes at Northwest Shoals Community College in 

fall of 2016. Before classes begin, students register and pay for classes at the 

cashier’s office. They are told then to go across the hall to the Student Success 

Center to get their picture taken for their student ID. The college sends new student 

information to the vendor to print and mail the student ID. If the picture has been 

taken, it should appear on the student ID. Otherwise, the card will come without a 

picture on it and a message that reads “needs photo see ID office.” In late August 

2016, Ms. Ambrosio had her picture taken for her student ID, but the ID was 

delayed in arriving, and eventually it arrived without a photo.

Shortly before the November 2016 general election, Ms. Ambrosio’s sister 

drove her to the courthouse to get a voter ID card from the board of registrars’ 

office; she left with a temporary paper ID, and she received a permanent ID in the 

mail a few weeks later. Ms. Ambrosio used the temporary ID to vote in the 

November 2016 general election. Ms. Ambrosio also followed up with Northwest 

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Shoals Community College and obtained a student ID with photo. That ID is an 

accepted voter ID under Ala. Code § 17-9-30.

4. Shameka Harris

Plaintiff Shameka Harris is a thirty-three year-old lawfully registered black

voter, U.S. citizen, and resident of Sumter County, Alabama. Although Ms. Harris 

has previously voted in-person using a photo or non-photo ID under the 2003 voter 

ID law, her unexpired ALEA nondriver photo ID was stolen, along with her wallet, 

in 2014.

In 2016, Ms. Harris possessed an expired nondriver photo ID, which she 

could not use to vote. Ms. Harris did not attempt to vote in November 2016 

because she knew that voters needed to have a valid photo ID and she did not have 

one at the time.

Ms. Harris does not own a car. She pays private individuals to drive her 

anywhere that is not within the immediate walking distance of her home. 

Ms. Harris has a copy of her birth certificate. Ms. Harris’s birth certificate 

was lost in a fire, but she later replaced it. She paid $15 (borrowed from her 

boyfriend) to replace her birth certificate, and she had to pay for the ride to 

Livingston. Before her March 2017 deposition, and after the November 2016 

election, Ms. Harris also went to Livingston to update her voter registration. Ms. 

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Harris took the updated voter registration to the ALEA office and got a new 

nondriver photo ID.

5. Elizabeth Ware

Plaintiff Elizabeth Ware is a sixty year-old, lawfully registered black voter, 

U.S. citizen, and resident of Mobile County, Alabama.

Ms. Ware’s nondriver photo ID was stolen in 2014. Ms. Ware lives in 

Prichard, in Mobile County. The license commission in Mobile County issues 

renewals and duplicates of driver’s licenses and nondriver IDs at five locations in 

Mobile County, including one in Prichard. The Prichard office is open 7:00 am to 

5:00 pm Mondays, Tuesdays, Thursdays, and Fridays. Ms. Ware has a Medicaid 

card and a Social Security card.

Ms. Ware testified that she tried to get a photo voter ID from the Mobile 

County board of registrars’ office but was turned away because she had previously 

held a nondriver ID. Ms. Ware did not have a photo ID at the time of the March 1, 

2016 primary election or the November 2016 general election, and did not vote in 

either election.

Ms. Ware lives on a fixed income. She does not have reliable access to 

transportation, and does not own a vehicle. Her health limits her ability to walk to 

the nearest bus stop, though she has walked to a polling place near her home. 

Although members of Ms. Ware’s family can sometimes provide her with rides, 

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their work schedules often prevent her family members from giving her rides 

during the day.

Ms. Ware was unaware of the mobile ID unit home visit until her deposition. 

At her deposition, Ms. Ware expressed interest in arranging for the mobile unit to 

come to her home. On March 10, 2017, two employees of the Secretary of State’s 

office traveled more than 150 miles (one way) to Ware’s residence to issue her a 

photo ID.

6. Defendant-Appellee John Merrill

Defendant John H. Merrill is being sued in his official capacity as the 

Secretary of State of Alabama. The Secretary of State is Alabama’s chief election 

official. He is charged with issuing photo voter ID cards and informing the public 

about the voter ID law’s requirements. See Ala. Code §§ 17-9-30(f), (l), (n). 

Secretary Merrill also has authority to promulgate administrative rules to 

implement the voter ID law. Id. § 17-9-30(o).

B. Procedural History

Plaintiffs filed this lawsuit, claiming the 2011 voter ID law violates the 

Fourteenth and Fifteenth Amendments of the Constitution, as well as Section 2 of 

the VRA, arguing the passage of the law was motivated by racial discrimination 

and that the law has a discriminatory effect. They also claim the “Positively 

Identify Provision” (“PIP”) constitutes an illegal “test or device” in violation of

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Section 201 of the VRA. Secretary Merrill denies these claims and argues that the 

law is constitutional, nondiscriminatory, and valid. He also argues that the PIP is 

valid and does not violate Section 201 of the VRA.

Merrill filed a motion for summary judgment, while Plaintiffs filed a motion 

for partial summary judgment. The court considered both motions at the same time 

and granted Merrill’s motion for summary judgment, dismissing all claims and 

denying Plaintiffs’ motion for partial summary judgment. The district court found 

that Plaintiffs failed to show that the voter ID law in fact discriminates against 

Alabamians on the basis of race. Although it was undisputed that minority 

registered voters are statistically more likely than white voters to lack the required 

ID, the district court determined that “a person who does not have a photo ID today 

is not prevented from voting if he or she can easily get one, and it is so easy to get 

a photo ID in AL, no one is prevented from voting.” The district court concluded 

that no discriminatory impact existed because free IDs are issued in every county, 

or at an individual’s home, under conditions that any registered voter can meet. 

Plaintiffs-Appellants timely filed this appeal. 

II. JURISDICTION

The judicial power of the federal courts is limited by Article III of the U.S. 

Constitution. We may exercise jurisdiction only over “Cases” and “Controversies.” 

U.S. Const. art. III, § 2; see Lujan v. Defs. of Wildlife, 504 U.S. 555, 559 (1992). 

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“To satisfy the ‘case’ or ‘controversy’ requirement of Article III, which is the 

‘irreducible constitutional minimum’ of standing, a plaintiff must, generally 

speaking, demonstrate that he has suffered ‘injury in fact,’ that the injury is ‘fairly 

traceable’ to the actions of the defendant, and that the injury will likely be 

redressed by a favorable decision.” Glassroth v. Moore, 335 F.3d 1282, 1292 (11th 

Cir. 2003) (quoting Bennett v. Spear, 520 U.S. 154, 162 (1997)). 

Although the parties did not address this issue in their briefing or at oral 

argument, the Court is obligated, as a jurisdictional matter, to confirm the 

Plaintiffs’ standing to bring this case. “Indeed, it is well settled that a federal court 

is obligated to inquire into subject matter jurisdiction sua sponte whenever it may 

be lacking.” Univ. of S. Alabama v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 

1999). Plaintiffs in this case can be sorted into two groups: advocacy organizations 

(GBM and the Alabama NAACP) and individuals (Ambrosio, Harris, and Ware). 

We address the standing of the organizational Plaintiffs first. 

Based on the Supreme Court’s standing doctrine, GBM and the Alabama 

NAACP have standing to bring this suit. “[W]e have recognized that an association 

has standing to bring suit on behalf of its members when: (a) its members would 

otherwise have standing to sue in their own right; (b) the interests it seeks to 

protect are germane to the organization’s purpose; and (c) neither the claim 

asserted nor the relief requested requires the participation of individual members in 

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the lawsuit.” Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 

343 (1977). First, both organizations have members (minority voters in Alabama) 

who would otherwise have standing to sue. Second, this lawsuit is germane to both 

organizations, whose purposes focus on voter rights and equal opportunity for 

minority voters. Finally, we cannot say that the constitutional and voting rights 

claims asserted, or the declaratory or injunctive relief requested, require the 

participation of the individual members in this lawsuit. See Nat’l Parks 

Conservation Ass’n v. Norton, 324 F.3d 1229, 1244 (11th Cir. 2003) (holding that 

the third prong of the associational standing test was satisfied where organizational 

plaintiffs’ individual members did not need to be made parties to the suit “in order 

to advance the [organizational plaintiffs’] equal protection claim or to fashion the 

sort of prospective injunctive relief [the organizational plaintiffs] sought”); see 

also Sierra Club v. Tennessee Valley Auth., 430 F.3d 1337, 1345 (11th Cir. 2005) 

(same).29 Accordingly, we conclude that the organizational Plaintiffs in this case 

have met the prerequisites to associational standing. 

29 The Court in Hunt considered “the type[s] of relief that an association could properly pursue 

on behalf of its members,” and found that prospective relief weighed in favor of finding that 

associational standing exists. See Hunt, 432 U.S. at 343 (quoting Warth, 422 U.S. at 515 (“If in a 

proper case the association seeks a declaration, injunction, or some other form of prospective 

relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those 

members of the association actually injured. Indeed, in all cases in which we have expressly 

recognized standing in associations to represent their members, the relief sought has been of this 

kind.”)).

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Our conclusion that the two advocacy organizations have associational 

standing makes it unnecessary for us to engage in a full standing analysis of the 

claims made by individual Plaintiffs Ambrosio, Harris, and Ware. Glassroth v. 

Moore, 335 F.3d 1282, 1293 (11th Cir. 2003) (“Having concluded that those two 

plaintiffs have standing, we are not required to decide whether the other plaintiff[s] 

. . . ha[ve] standing.”)); see also Am. Civil Liberties Union of Georgia v. Rabun 

Cty. Chamber of Commerce, Inc., 698 F.2d 1098, 1109 (11th Cir. 1983) (“Because 

we have determined that at least these two individuals have met the requirements 

of Article III, it is unnecessary for us to consider the standing of the other plaintiffs 

in this action.”).

III. DISCUSSION

A. Standard of Review

The Court of Appeals reviews de novo “a district court’s rulings on crossmotions for summary judgment, and the facts are viewed in the light most 

favorable to the non-moving party on each motion.” Chavez v. Mercantil 

Commercebank, N.A., 701 F.3d 896, 899 (11th Cir. 2012) (citations omitted).

Summary judgment is appropriate “if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of 

law.” Fed. R. Civ. P. 56(a). “A genuine factual dispute exists only if a reasonable 

factfinder ‘could find by a preponderance of the evidence that the plaintiff is 

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entitled to a verdict.’” Cynergy, LLC v. First Am. Title Ins. Co., 706 F.3d 1321, 

1326 (11th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 

106 S. Ct. 2505, 2512 (1986)). This Court will affirm the grant of summary 

judgment if we conclude that there is no genuine issue of material fact.

B. Discussion

“We approach this case with caution, bearing in mind that these 

circumstances involve ‘one of the most fundamental rights of our citizens: the right 

to vote.’” Georgia State Conference of NAACP v. Fayette Cty. Bd. of Comm’rs, 

775 F.3d 1336, 1345 (11th Cir. 2015) (quoting Bartlett v. Strickland, 556 U.S. 1, 

10 (2009)). However, “[g]iven the fact that petitioners have advanced a broad 

attack on the constitutionality” of Alabama’s voter ID law, and because Plaintiffs 

seek “relief that would invalidate the statute in all its applications, they bear a 

heavy burden of persuasion.” Crawford, 553 U.S. at 200.

Plaintiffs are correct that summary judgment is not often granted in voter 

denial lawsuits. They are incorrect, however, in implying that a case such as this 

should never be decided on summary judgment. It is irrefutable that a motion for 

summary judgment can—and should—be granted when the conditions of Rule 56 

are met. Fed. R. Civ. P. 56 (a) (“The court shall grant summary judgment if the 

movant shows that there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.”), see also Shook v. United 

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States, 713 F.2d 662, 665 (11th Cir. 1983) (“Faced with cross motions for 

summary judgment the district court made extensive findings of fact and entered 

judgment for the government. . . . [T]he only required finding is that there is no 

genuine issue as to any material fact.”). We firmly resist any inducement to 

establish a category of claims (e.g., vote denial claims or constitutional challenges 

to laws affecting voting) that can never succeed on a Rule 56 motion for summary 

judgment. Cf. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 148, 120 S. 

Ct. 2097, 2109, 147 L. Ed. 2d 105 (2000) (“[W]e have reiterated that trial courts 

should not treat discrimination differently from other ultimate questions of fact.”) 

(internal quotations omitted); Chapman v. AI Transp., 229 F.3d 1012, 1026 (11th 

Cir. 2000) (en banc) (“The long and short of it is that the summary judgment rule 

applies in job discrimination cases just as in other cases. No thumb is to be placed 

on either side of the scale.”).

We do acknowledge that, even as the parties set forth 100-plus pages of 

jointly filed “Undisputed Material Facts,” they continued to dispute the materiality 

and relevance of various facts. But such disputes do not doom a motion for 

summary judgment; only genuine disputes about material facts do. See 

Restigouche, Inc. v. Town of Jupiter, 59 F.3d 1208, 1213 (11th Cir. 1995) In this 

case, there are no such disputes of material facts.

1. Violation of the Fourteenth & Fifteenth Amendments

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We turn now to the substantive arguments raised by Plaintiffs. Plaintiffs

filed suit under 42 U.S.C. § 1983, 30 which provides them with a federal “cause of 

action for constitutional violations committed under color of state law. To prevail, 

plaintiffs must demonstrate both that the defendants deprived them of a right 

secured under the Constitution or federal law and that the deprivation occurred 

under color of state law.” Burton v. City of Belle Glade, 178 F.3d 1175, 1187–88 

(11th Cir. 1999) (citing Arrington v. Cobb County, 139 F.3d 865, 872 (11th Cir.

1998)). Because the Alabama voter ID law and its enforcement fall squarely under 

color of state law, we need only address the constitutionality of the law. Id. at 

1188.

Plaintiffs allege that the Alabama voter ID law “was purposefully enacted or 

operates to deny or abridge the right to vote on account of race or color,” in 

violation of the Fourteenth Amendment to the United States Constitution. Plaintiffs 

also allege the voter ID law violates the Fifteenth Amendment to the United States 

Constitution because Alabama “intentionally enacted or operates [HB19] to deny 

or abridge the right to vote on account of race or color.” The Fourteenth 

Amendment provides in relevant part that “[n]o State shall . . . deny to any person 

30 Under 42 U.S.C. § 1983, “[e]very person who, under color of any statute, . . . of any State . . . , 

subjects, or causes to be subjected, any citizen of the United States or other person within the 

jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the 

Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or 

other proper proceeding for redress . . .” Id.

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within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV. 

The Fifteenth Amendment provides that “[t]he right of citizens of the United States 

to vote shall not be denied or abridged by the United States or by any State on 

account of race, color, or previous condition of servitude.” U.S. Const. amend. XV. 

At the outset, we are compelled to mention that Plaintiffs have failed to 

distinguish meaningfully their grievances from those raised more than a decade 

ago by the plaintiffs in Crawford v. Marion County Election Board, 553 U.S. 181

(2008).

31 In Crawford, a variety of nonprofit organizations and public officials

brought a facial challenge to an Indiana state law that required Indiana residents to 

present government-issued photo identification to vote. The Supreme Court 

upheld the Indiana photo voter ID law. We readily acknowledge that the 

challengers in Crawford did not allege intentional race discrimination; rather, they 

31 We are cognizant of the fact that we are required to impose the narrowest ground of the 

Supreme Court’s plurality decision in Crawford. See Marks v. United States, 430 U.S. 188, 193 

(1977) (“When a fragmented Court decides a case and no single rationale explaining the result 

enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken 

by those Members who concurred in the judgments on the narrowest grounds.”) (quotation marks 

omitted). We join our sister circuits in recognizing Justice Stevens’ plurality opinion as 

controlling. See Obama for Am. v. Husted, 697 F.3d 423, 441 n.7 (6th Cir. 2012) (“Justice 

Stevens’ opinion in Crawford (the narrowest opinion, thus the controlling one for our purposes) . 

. . Justice Stevens’ opinion does not reveal any disinclination to evaluate evidence of an 

excessive burden; rather, the purely anecdotal evidence did not support that the voter-ID statute 

at issue imposed such a burden.”). See also The Am. Civil Liberties Union of New Mexico v. 

Santillanes, 546 F.3d 1313, 1321 (10th Cir. 2008) (“Following Crawford, it appears that Justice 

Stevens’s plurality opinion controls, a position advocated by the Plaintiffs in the present case 

because it is the narrowest majority position. Few commentators have analyzed the decision; 

however, some district court opinions analyzing similar laws have followed Justice Stevens’s 

approach.”). 

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mounted a facial attack against Indiana’s photo ID requirements and made no 

mention of discriminatory intent on the part of the Indiana legislature when passing 

the photo ID law. In contrast, Plaintiffs’ claims in this case rest heavily on the 

alleged motives of the Alabama legislature and so we must determine whether 

Alabama’s voter ID law was passed with an intent to discriminate against

Alabama’s minority voters. We also recognize that Plaintiffs in this case have 

provided evidence of the various voter ID issues facing individual Plaintiffs in an 

attempt to address the Crawford Court’s concerns about an incomplete record. 

Despite these differences, Crawford is not completely distinguishable. In two key 

respects, this case is the same: (1) the alleged voter burdens facing Alabamians are 

essentially the same as the burdens imposed on Indiana voters in 2008 that the 

Supreme Court upheld as constitutionally valid, and (2) Alabama’s stated interests 

in passing a photo ID law echo the state interests espoused by Indiana that were 

held to be sufficient in Crawford. Thus, Crawford’s principles are relevant to this 

case and deserve our consideration.

In Crawford, the Supreme Court analyzed an Indiana law that required 

voters to present a photo ID when voting in person. Indiana offered four state 

interests in passing a voter ID law: (1) deterring and detecting voter fraud, (2)

participating in a nationwide effort to improve and modernize election procedures, 

(3) addressing the state’s own mismanagement of voter rolls, and (4) safeguarding 

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voter confidence. Id. at 191. Individuals without a photo ID were allowed to cast 

provisional ballots that could be cured by an affidavit. Id. at 199. The Court 

acknowledged that, due to the ID requirement, “a somewhat heavier burden may 

be placed on a limited number of persons,” but determined that the severity of that 

burden was mitigated through the provisional ballot option. Further, the Court 

noted that the Indiana plaintiffs failed to develop, in the record, evidence sufficient 

to convince the Court that the voter ID requirement imposed “excessively 

burdensome requirements on any class of voters.” Id. at 202 (internal quotations 

omitted). In considering “only the statute’s broad application to all Indiana voters,” 

the Court concluded that it imposed “only a limited burden on voters’ rights” so 

the “precise interests advanced by the State” were sufficient to defeat the facial 

challenge to the Indiana law. Id. at 202–03 (internal quotations and citations 

omitted). Simply put, the Court weighed the burdens imposed on voters with the 

state interests underlying the Indiana law and found the law to be a neutral, 

nondiscriminatory regulation of voting procedure. Id. at 203. Notably, the Supreme 

Court recognized that “just as other States provide free voter registration cards, the 

photo identification cards issued by [the State] are also free. For most voters who 

need them, the inconvenience of making a trip to the BMV [or a registrars’ office], 

gathering the required documents, and posing for a photograph surely does not 

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qualify as a substantial burden on the right to vote, or even represent a significant 

increase over the usual burdens of voting.” 553 U.S. at 198.

Here, as in Crawford, the burden analysis is similar. Alabama provides free 

photo voter ID cards to any Alabamian who wants one. In fact, Alabama makes it 

even easier to obtain a photo ID than Indiana did: Alabamians can utilize the 

mobile unit option to obtain a photo ID, virtually eliminating the need to take a 

“trip to the BMV” or registrars’ office. Id. It is undisputed that free photo IDs are 

available from every registrars’ office in Alabama; that the Secretary of State’s 

mobile unit travels throughout the state to offer alternative locations; and that, if a 

voter cannot get to a registrars’ office, he or she can request and receive a home 

visit by the mobile unit.

Furthermore, the Court determined that the state interests espoused by 

Indiana in defending its voter ID law in Crawford are legitimate and valid reasons 

to adopt such a law. See id. at 192–97. The Supreme Court explained that the 

Indiana’s interests in modernizing election procedures, combating voter fraud, and 

protecting public confidence in the integrity of the electoral process are legitimate 

and justify the minimal burdens imposed by a voter ID law. Id. These interests are 

the same ones advanced as justification for the Alabama photo voter ID law at 

issue here; in their motion for summary judgment, Alabama articulated the state’s 

interests in passing the “photo ID law to combat voter fraud, to increase confidence

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in elections, and to modernize its elections procedures.” Contrary to the dissent’s 

assertions that Alabama indisputably passed the voter ID law “to solve a problem 

with in-person voting that did not exist,” Alabama’s interests in passing the voter 

ID law are not substantively different from the neutral, nondiscriminatory reasons 

espoused by Indiana and upheld by the Supreme Court in Crawford. Just as 

“Congress believes that photo identification is one effective method of establishing 

a voter’s qualification to vote,” Id. at 193, so too did the Alabama legislature. It 

follows that the burden of presenting a photo ID in order to vote is “justified by 

relevant and legitimate state interests ‘sufficiently weighty to justify’” the burden 

on Alabama voters. Id. at 191 (quoting Norman v. Reed, 502 U.S. 279, 288–289 

(1992)).32

Nevertheless, despite the analysis and result in Crawford, we proceed with a 

full review of Plaintiffs’ claims. As an initial matter, we are mindful that the 

Supreme Court has not held that “a law that imposes any burden upon the right to 

vote must be subject to strict scrutiny.” Burdick v. Takushi, 504 U.S. 428, 432 

(1992). Acknowledging that “[e]lection laws will invariably impose some burden 

32 The dissent attempts to distinguish this case from Crawford because “unlike Alabama, Indiana 

was never required under the VRA to obtain preclearance to change its voting laws.” While that 

is true, it is irrelevant. Like the voter ID law in Crawford, the Alabama voter ID law imposes

minimal burdens on voters and is supported by legitimate state interests. 

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upon individual voters,” the Court instead has applied “a more flexible standard.” 

Id. at 433-34.

In considering a state’s election law, we

must weigh the character and magnitude of the asserted injury to the 

rights . . . that the plaintiff seeks to vindicate against the precise 

interests put forward by the State as justifications for the burden 

imposed by its rule, taking into consideration the extent to which 

those interests make it necessary to burden the plaintiff’s rights.

Id. at 434 (internal citations omitted).

Accordingly, “the rigorousness of [the] inquiry into the propriety of a state 

election law depends on the extent to which a challenged regulation burdens . . . 

Fourteenth Amendment rights.” Id. at 434. If the challenged law involves “severe 

restrictions” to the right to vote, “the regulation must be narrowly drawn to 

advance a state interest of compelling importance.” Id. (internal quotations 

omitted). Conversely, when the state law at issue “imposes only ‘reasonable, 

nondiscriminatory restrictions’ upon the . . . Fourteenth Amendment rights of 

voters, ‘the State’s important regulatory interests are generally sufficient to justify’ 

the restrictions.” Id. (quoting Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)).

With Burdick in mind, we turn to our analysis of Plaintiffs’ equal protection 

claims. A successful equal protection claim under the Fourteenth Amendment 

requires proof of both an intent to discriminate and actual discriminatory effect. 

Davis v. Bandemer, 478 U.S. 109, 127 (1986) (“[P]laintiffs were required to prove 

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both intentional discrimination against an identifiable political group and an actual 

discriminatory effect on that group.”); see also Burton, 178 F.3d at 1188–89.

Similarly, the Supreme Court has long recognized that evidence of a racially 

discriminatory motivation is required for Plaintiffs to prevail on a Fifteenth 

Amendment claim. Put simply, “racially discriminatory motivation is a necessary 

ingredient of a Fifteenth Amendment violation.” City of Mobile, Ala. v. Bolden, 

446 U.S. 55, 62 (1980), superseded by statute on other grounds as stated in 

Thornburg v. Gingles, 478 U.S. 30, 35 (1986). See also Gomillion v. Lightfoot, 364 

U.S. 339, 347 (1960); Wright v. Rockefeller, 376 U.S. 52, 56 (1964).

There are two prongs to an equal protection analysis under the Fourteenth 

Amendment and a denial or abridgment analysis under the Fifteenth Amendment. 

See Hunter v. Underwood, 471 U.S. 222, 227–28 (1985); Johnson v. Governor of 

Fla., 405 F.3d 1214, 1222–23 (11th Cir. 2005) (applying the Hunter test to a 

Fourteenth Amendment equal protection claim); Burton, 178 F.3d 1175, 1188–89

(applying the Hunter test to a Fifteenth Amendment abridgement claim). Plaintiffs 

must first show that the State’s “decision or act had a discriminatory purpose and 

effect.” Burton, 178 F.3d at 1188–89. If Plaintiffs are unable to establish both 

intent and effect, their constitutional claims fail. Burton, 178 F.3d at 1195. Once 

discriminatory intent and effect are established, the second prong provides that 

“the burden shifts to the law’s defenders to demonstrate that the law would have 

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been enacted without this [racial discrimination] factor.” Hunter, 471 U.S. at 228; 

Johnson, 405 F.3d at 1223.

As we turn to the first prong of the equal protection analysis to determine 

whether the Alabama photo ID law has both a discriminatory intent and effect, we 

are further guided by the multiple factor approach articulated by the Supreme 

Court in Village of Arlington Heights v. Metropolitan Housing Development Corp., 

429 U.S. 252, 265 (1977). The Arlington Heights analysis, which applies to both 

Fourteenth Amendment and Fifteenth Amendment claims, see Burton, 178 F.3d at 

1189, requires us to start by determining whether the challenged law has a 

discriminatory impact and “whether it bears more heavily on one race than 

another.” Id. at 266. From there, the Supreme Court suggested that the relevant 

evidentiary factors for determining whether racially discriminatory intent existed

include:“[t]he historical background of the decision,” “[t]he specific sequence of 

events leading up [to] the challenged decision,” “[d]epartures from the normal 

procedural sequence,” and “contemporary statements by members of the 

[Legislature], minutes of its meetings, or reports.” Arlington Heights, 429 U.S. at

267–68. We thus summarize the Arlington Heights factors as follows: (1) the 

impact of the challenged law; (2) the historical background; (3) the specific 

sequence of events leading up to its passage; (4) procedural and substantive 

departures; and (5) the contemporary statements and actions of key legislators. 

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And, because these factors are not exhaustive, the list has been supplemented: (6) 

the foreseeability of the disparate impact; (7) knowledge of that impact, and (8) the 

availability of less discriminatory alternatives. Jean, 711 F.2d at 1486.33 For the 

reasons articulated below, we find that the Plaintiffs have not met the requirements 

of the first prong and so their equal protection challenge fails.

i. Impact of the Challenged Law

As we turn to the first Arlington Heights factor – whether the Alabama law 

has a discriminatory impact—we note that the Supreme Court cautioned that it 

would be rare to find a case involving “a clear pattern, unexplainable on grounds 

other than race” and that, “[a]bsent a pattern as stark as that, . . . [discriminatory] 

impact alone is not determinative, and the Court must look to other evidence.” 

Arlington Heights, 429 U.S. at 266. 

Here, there is no clear pattern that would be determinative. While we 

acknowledge Plaintiffs’ assertions that minority voters in Alabama possess photo 

IDs at a slightly lower rate than white Alabama voters, the small disparities in ID 

possession rates do not, standing alone, establish a “pattern, unexplainable on 

33 The Arlington Heights factors require a fact intensive examination of the record and, even so, 

do not lend themselves to a clean analysis in this case. While Plaintiffs attempt to provide “a 

convincing mosaic of circumstantial evidence” in support of their claims, Lewis v. City of Union 

City, 877 F.3d 1000, 1018 (11th Cir. 2017), this approach results in a presentation of evidence 

that supports several factors at once to support their overarching “discriminatory intent” 

argument. We attempt to parse these arguments as neatly as possible within the Arlington 

Heights and Jean framework, focusing on issues in the order and manner presented in Plaintiffs’ 

briefing. 

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grounds other than race.”34 Id. Accordingly, we turn to the other Arlington Heights 

factors and Plaintiffs’ proffered “other evidence” to determine whether the 

Alabama legislature intended to discriminate when it passed its 2011 voter ID law.

ii. Contemporary Statements and Actions of Key Legislators

and Historical Background 

Plaintiffs argue that the discriminatory intentions of individual legislators—

as evidenced by their statements made “contemporaneously”35 to the bill’s 

passage—and the concurrent passage of other allegedly “racially discriminatory”

laws like HB5636 create a triable issue of fact regarding whether the Alabama 

legislature intended to discriminate when passing the voter ID law. See Arlington 

Heights ̧429 U.S. at 268 (“The legislative or administrative history may be highly 

relevant, especially where there are contemporary statements by members of the 

decisionmaking body.”). In doing so, Plaintiffs attempt to tie the more modern 

statements made by Alabama legislators to Alabama’s racist history as well as

statements made by former Alabama legislators. Because Plaintiffs’ analysis 

integrates both arguments, we consider these Arlington Heights factors together. 

34 Our analysis in Section 3.B.2 further guides our findings that the small disparities in ID 

possession rates—and its negligible impact—do not establish a pattern based on race and do not 

rise to a genuine dispute of material fact. 

35 Plaintiffs use the term “contemporaneously” loosely, citing some statements made in 2010 and 

some made as far back as 1996.

36 See supra note 9. 

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We begin with the modern statements made by several Alabama legislators. 

Plaintiffs cite the statements of legislators Dixon, Rich, and Beason and argue that 

“[t]hese overt statements of racial bias against voters of color powerfully support 

the inference that HB19 had a discriminatory purpose.” To support their argument, 

Plaintiffs cite Carrollton Branch of NAACP v. Stallings, 829 F.2d 1547, 1552 (11th 

Cir. 1987), for the proposition that “discriminatory intent could be inferred from 

the fact that the sponsor of the challenged law had in the past made a racist speech 

about a different voting bill.” 

In Stallings, however, this Court found evidence of discriminatory intent

based on prior speech because the sponsor of the 1951 bill had made the speech 

when he introduced the same bill in 1947. 829 F.2d at 1552. The racist speech in 

1947 “was evidence of an intent to discriminate against black voters in any voting 

legislation before the General Assembly during that [1947] session.” Id. Because 

the bill was re-introduced “under the same sponsorship” in 1951, we considered 

the circumstances to be the same as in 1947. Id. 

In this case, Plaintiffs primarily cite various statements made by former 

Alabama State Senator Larry Dixon in 1996 and 2010. Although in Stallings we 

found that earlier statements can sometimes provide evidence of discriminatory 

intent, that case involved the same bill and the same sponsor. Senator Dixon was 

not a sponsor of this legislation and, in fact, was not a member of the Alabama 

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legislature in 2011 when the voter ID law was passed. Similarly, Plaintiffs provide 

no evidence that Senator Beason’s comment was made at the same time, or even 

during the same session, as the passage of HB19. In fact, there is no evidence as to 

when he made his comment or what bill he was discussing when he did. Likewise, 

Representative Rich’s allegedly “prejudiced comments about Latino citizens” do 

not provide Stallings-level evidence of discriminatory intent. Although 

Representative Rich, who was the primary sponsor of HB19, did make these

statements during the 2011 legislative session, he made them during the debate on

a different bill (HB56) about an entirely different subject (immigration). It does not 

stand to reason that those comments support a wholesale intent by Representative 

Rich, or by the Alabama legislature, to discriminate against minority voters. To be 

clear: this Court does not condone, under any circumstances, racist statements. But 

we are confined to an analysis of discriminatory intent as it relates to HB19, and 

the statements Plaintiffs identify were not made about the law at issue in this case

and thus do not evidence discriminatory intent behind it.

Secretary Merrill’s arguments stand in stark contrast to Plaintiffs’ claims. 

Secretary Merrill contends that the Alabama voter ID law was passed to combat 

voter fraud, increase voter confidence, and to modernize elections. As this Court 

has recognized, “a strong state policy in favor of [the challenged practice], for 

reasons other than race, is evidence that the [practice] does not have a 

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discriminatory intent.” United States v. Marengo Cty. Comm’n, 731 F.2d 1546, 

1571 (11th Cir. 1984). Secretary Merrill notes that, at the time of HB19’s passage, 

Alabama already had an existing—precleared—voter ID law that required 

Alabamians to present a photo ID. Alabama merely joined a growing national trend 

in passing voter identification laws. The passage of HB19—and, in fact, the prior 

2003 law—was driven by the need to address well-documented and public cases of 

voter fraud that occurred in Alabama. The law’s passage was championed both by 

public officials and by grass-roots, citizen-led movements.

During oral argument, we expressed our skepticism that the discriminatory

intent could be ascertained from the statements of one legislator speaking about 

another bill.37 As a general matter, determining the intent of the legislature is a 

problematic and near-impossible challenge. Hunter, 471 U.S. at 228 (“Proving the 

motivation behind official action is often a problematic undertaking.”); see also 

Edwards v. Aguillard, 482 U.S. 578, 636–37 (1987) (Scalia, J., dissenting) 

(“[D]iscerning the subjective motivation of those enacting the statute is, to be 

honest, almost always an impossible task. The number of possible motivations, to 

37 This skepticism echoed our past reluctance to speculate about a state legislature’s intent. See 

Autauga Quality Cotton Ass'n v. Crosby, 893 F.3d 1276, 1285–86 (11th Cir. 2018) (“It’s 

certainly not our place—particularly as a federal court . . .—to speculate whether the Alabama 

Legislature might have secretly intended (or might even today prefer) a different rule.”).

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begin with, is not binary, or indeed even finite. . . . To look for the sole purpose of 

even a single legislator is probably to look for something that does not exist.”). 

The Plaintiffs’ position is weakened significantly by the fact that the 

evidence presented in this case is largely unconnected to the passage of the actual 

law in question. Unlike North Carolina State Conference of NAACP v. McCrory, 

the record and the specific sequence of events leading up to the passage of the law 

does not lead to “the obvious inference . . . of . . . discriminatory intent.” 831 F.3d 

204, 227 (4th Cir. 2016), cert. denied sub nom. North Carolina v. N. Carolina 

State Conference of NAACP, 137 S. Ct. 1399 (2017). In McCrory, the North 

Carolina legislature, immediately after Shelby County, vastly expanded an earlier 

photo ID bill and changed the accepted photo ID provision: “the new ID provision 

retained only those types of photo ID disproportionately held by whites and 

excluded those disproportionately held by African Americans.” Id. But the 

opposite has happened in Alabama, where the Alabama legislature specifically 

included the types of photo ID—government employee IDs—that North Carolina 

failed to accept in McCrory, as acceptable IDs. Furthermore, the Alabama 

legislature also decided to allow student IDs, in contrast to the Texas election law

that the Fifth Circuit criticized in Veasey v. Abbott, 830 F.3d 216, 262 (5th Cir. 

2016), cert. denied, 137 S. Ct. 612 (2017) (Texas legislature rejected amendments 

to expand the forms of acceptable ID to include student IDs, federal IDs, stateCase: 18-10151 Date Filed: 07/21/2020 Page: 47 of 97
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government employee IDs despite testimony about likely disparate impact if such 

IDs were excluded). Alabama specifically included a wide variety of photo IDs 

and offers free photo IDs to Alabama citizens who wish to obtain one, which raises 

the question: “Indeed, why would a racially biased legislature have provided for a 

cost-free election ID card to assist poor registered voters—of all races—who might 

not have drivers’ licenses?” Id. at 281 (Jones, J., dissenting). 

It is also questionable whether the sponsor speaks for all legislators. The 

vote of a sponsor is only one vote of the 105 votes in the Alabama House of 

Representatives. And the record does not show that the primary sponsor, 

Representative Rich, spoke at all about the intentions motivating the passage of 

HB19. It stretches logic to deem a sponsor’s “intent”—ascertainable only from 

contemporaneous statements made by HB19 sponsor Representative Rich about a 

different bill on a different topic unrelated to the voter ID law—as the legally 

dispositive intent of the entire body of the Alabama legislature on that law. No 

reasonable fact-finder could find a discriminatory intent or purpose underlying 

Alabama’s voter ID law from the statements identified by Plaintiffs.

When we focus on the circumstances surrounding the passage of HB19, it is 

undisputed that none of the comments in question were made about that legislation. 

The statements made by current and former Alabama legislators at issue in this 

case are not “smoking gun” evidence of discriminatory intent in the context of the 

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voter ID law. The fact remains that Plaintiffs cannot point to evidence—not a 

single comment made by any sitting Alabama legislator in reference to HB19—to 

support their argument that the voter ID law was intended to discriminate against 

black and Latino voters. 

We are mindful of the danger of allowing the old, outdated intentions of 

previous generations to taint Alabama’s legislative action forevermore on certain 

topics. Plaintiffs point to the racist history of Alabama as a significant barrier for 

Secretary Merrill to overcome in defending this law. But it cannot be that 

Alabama’s history bans its legislature from ever enacting otherwise constitutional 

laws about voting. Surely, “past discrimination cannot, in the manner of original 

sin, condemn governmental action that is not itself unlawful.” Bolden, 446 U.S. at

74; see also Abbott v. Perez, 138 S. Ct. 2305, 2324 (2018) (explaining that “the 

presumption of legislative good faith [is] not changed by a finding of past 

discrimination”); Arlington Heights, 429 U.S. at 267 (focusing the Court’s

“historical background” analysis on the “specific sequence of events leading up to 

the challenged decision” and not providing an unlimited look-back to past 

discrimination). In fact, during oral argument, Plaintiffs’ counsel admitted that, if 

today’s Alabama legislature passed the same law, without any discriminatory 

intent and relying on Crawford’s legitimate state interests in preventing voter fraud 

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and increasing voter confidence in elections, a current version of HB19 would pass 

constitutional muster.38

The dissent does not dispute that another state, say Illinois, could enact the 

identical statute, but instead argues partly that Alabama cannot enact this statute

because of its history. But the Supreme Court foresaw this line of argument in 

Shelby County, emphasizing “the fundamental principle of equal sovereignty,” 

which requires that we recognize that ours “is a union of States, equal in power, 

dignity and authority.” Shelby County, 570 U.S. at 544; id. (“[T]he constitutional 

equality of the States is essential to the harmonious operation of the scheme upon 

which the Republic was organized.”). Notwithstanding the Shelby County Court’s 

admonition, the dissent argues our decision allows Alabama to “start with a clean 

slate” and that we should penalize the current legislature for Alabama’s racist past, 

because a racist past is evidence of current intent. But applying the principles of 

equal sovereignty counsels against the dissent’s disparate treatment of Alabama 

and guides us to look at the precise circumstances surrounding the passing of the 

voter ID law. See Shelby County, 570 U.S. at 553 (stating that the Fifteenth 

Amendment “is not designed to punish for the past; its purpose is to ensure a better 

38 See oral argument at 15:40-18:58: (Counsel for Plaintiffs acknowledged that, if “this law was 

enacted anew, I think we would concede that there may not be a constitutional violation.” Chief 

Judge Ed Carnes then queried, “Your case rises and falls on the racially discriminatory intent of 

the legislature, does it not?” to which Counsel answered, “Yes.”).

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future”); Cf. Ramos v. Louisiana, No. 18-5924, 590 U.S. ___ (2020) (Alito, J., 

dissenting) (“Too much public discourse today is sullied by ad hominem rhetoric, 

that is, attempts to discredit an argument not by proving that it is unsound but by 

attacking the character or motives of the argument’s proponents.”). Perhaps most 

significant is the fact that Plaintiffs provide no evidence that the Alabama 

legislators who supported the law intended the law to have a discriminatory impact

or believed that the law would have such an effect. Ultimately, the requirement that 

Alabama voters present photo ID “is amply justified by the [state’s] valid interest 

in protecting ‘the integrity and reliability of the electoral process.’” Crawford, 553 

U.S. at 204. HB19 was passed with provisions that permit voters to present many 

acceptable forms of photo ID. The statements made by individual members of the 

Alabama legislature at one time about other bills do not change the fact that the

legislative body passed a nondiscriminatory voter ID law, supported by valid 

neutral justifications, and that the law permits many different forms of ID and 

provides for free IDs for anyone in need.

iii. The Specific Sequence of Events Leading Up to HB19’s 

Passage and Procedural and Substantive Departures

Plaintiffs also present evidence of the legislature’s passage of HB19 and the 

alleged procedural departures that occurred when passing the 2011 voter ID law. 

Arlington Heights, 429 U.S. at 267 (“The specific sequence of events leading up 

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the challenged decision also may shed some light on the decisionmaker’s 

purposes. . . . Substantive departures too may be relevant.”).

39 Plaintiffs take issue 

with the use of cloture and truncated debate that precipitated the quick passage of 

the voter ID legislation at the end of the 2011 legislative session to support their 

position.

To contradict Plaintiffs’ arguments about the procedural maneuverings by 

the Alabama legislature in passing HB19, Secretary Merrill insists that there was 

nothing uncommon about the way that the voter ID law was passed. Indeed, it is 

undisputed that the use of cloture was exceedingly common during the 2011

legislative session. Plaintiffs counter that no black legislators voted for HB19, and 

the vote was a strictly party-line vote. Pursuant to Crawford, while it might be 

suspicious if partisan reasons were the only consideration or justification for the 

law,

40 Secretary Merrill has provided valid neutral justifications (combatting voter 

39 Notably, Plaintiffs attack only the alleged “[p]rocedural [d]epartures” of the Alabama 

legislature. They provide no evidence of any substantive departures for this Court to consider. 

40 In Crawford, the Court also addressed the partisan politics surrounding Indiana’s voter ID law, 

acknowledging that “all of the Republicans in the General Assembly voted in favor of [the voter 

ID law] and the Democrats were unanimous in opposing it.” 553 U.S. at 203. But, because 

“partisan considerations” were not the only justification for enacting the voter ID law, the Court 

went on to uphold the Indiana law: 

[I]f a nondiscriminatory law is supported by valid neutral justifications, those 

justifications should not be disregarded simply because partisan interests may 

have provided one motivation for the votes of individual legislators. The state 

interests identified as justifications for [the voter ID law] are both neutral and 

sufficiently strong to require us to reject petitioners’ facial attack on the statute. 

The application of the statute to the vast majority of [] voters is amply justified by 

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fraud, increasing confidence in elections, and modernizing Alabama’s elections 

procedures) for the law’s passage.

iv. Foreseeability and Knowledge of Disparate Impact

Plaintiffs combine “foreseeability of disparate impact” and “knowledge of 

that impact,” titling their argument “Foreknowledge.” Plaintiffs assert that the 

Alabama legislature had foreknowledge of the disparate impact HB19 would have

on minority voters in Alabama, as evidenced by the inclusion of a three-year

enforcement delay in the bill. As noted above, the evidence establishes that the 

delay in implementation occurred because the legislature anticipated challenges to 

the law and needed time to obtain preclearance. The mere fact of an 

implementation delay, without more, does not suggest that the Alabama legislature 

foresaw or knew that the law would have a disparate impact on minority voters. 

Finding a legitimate reason for the enactment delay, we decline to infer 

“foreknowledge” of disparate impact on the part of the Alabama legislature.

v. Availability of Less Discriminatory Alternatives

The final Arlington Heights factor we must consider is the “availability of 

less discriminatory alternatives.” Jean, 711 F.2d at 1486. Plaintiffs argue that 

HB19’s proponents “failed to include [alternative] options, such as a reasonable 

the valid interest in protecting “the integrity and reliability of the electoral 

process.”

Id. at 204 (quoting Anderson, 460 U.S., at 788 n.9) (emphasis added).

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impediment provision,41 which would have reduced the law’s” allegedly 

discriminatory impact.

We find this argument unpersuasive because, although the Alabama 

legislature did not include the alternative option that Plaintiffs would have 

preferred, we cannot say that the legislature failed to consider voter ID alternatives 

that would lessen any potentially discriminatory impact. Rather, the legislature 

passed a voter ID law that allows the use of not only driver’s licenses, but also 

many other forms of photo ID, and ensured that any Alabamian who wants one 

could obtain a free photo ID from the state. The record does not support Plaintiffs’

claim that the Alabama legislature intended to discriminate by failing to include 

alternative options that were less discriminatory. 

Overall, the Arlington Heights are meant to assist this Court in determining 

whether racially discriminatory intent existed when the Alabama legislature passed 

the 2011 voter ID law. After examining all of the Arlington Heights factors, it is 

clear that Plaintiffs have failed to prove that the law was enacted with 

discriminatory intent. In this case, Justice Scalia’s concurrence in Crawford, joined 

by Justices Thomas and Alito, rings particularly true: “[W]ithout proof of 

discriminatory intent, a generally applicable law with disparate impact is not 

41 This type of provision would allow voters who face some “reasonable impediment” in 

obtaining photo ID to submit affidavits or non-photo ID and cast a ballot. 

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unconstitutional. The Fourteenth Amendment does not regard neutral laws as 

invidious ones, even when their burdens purportedly fall disproportionately on a 

protected class.” Crawford, 553 U.S. at 207 (Scalia, J., concurring) (internal 

citation omitted). 

Lastly, we need not reach Hunter’s second prong because the Plaintiffs 

“cannot first prove that race was a motivating factor.” Burton, 178 F.3d at 1195 

(citations omitted). Thus, “there is no basis for shifting the burden to the [State] to 

determine whether, by a preponderance of the evidence, it would have made the 

same decision notwithstanding its racial motivation.” Id.

In sum, when we weigh the burden on a voter to obtain and present a photo 

ID against Alabama’s interests underlying the voter ID law, we find the law to be a 

neutral, nondiscriminatory regulation of voting procedure. We reiterate that, in 

order “to establish a violation of either the Equal Protection Clause of the

Fourteenth Amendment or the Fifteenth Amendment, Appellants must show that 

[Alabama’s] decision or act had a discriminatory purpose and effect.” Id. at 1188–

89; see also Bolden, 446 U.S. at 65 (“[The Fifteenth] Amendment prohibits only 

purposefully discriminatory denial or abridgment by government of the freedom to 

vote . . .”). Because Plaintiffs-Appellants have failed to show that the Alabama 

voter ID law was passed with a racially discriminatory intent or purpose, the 

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district court appropriately granted Secretary Merrill’s motion for summary 

judgment on Plaintiffs’ Fourteenth and Fifteenth Amendment claims. We affirm. 

2. Violation of Section 2 of the Voting Rights Act

Plaintiffs allege that the Alabama voter ID law and its implementation 

violate Section 2 of the VRA because it results in minority voters “having less 

opportunity than white voters to participate effectively in the political process and 

to elect candidates of their choice” and “having less opportunity to participate 

effectively in the political process in Alabama on account of race, color, or 

language minority status.” The district court, however, noted that a black voter and 

a white voter “of equal means who each lack ID and a birth certificate, and who 

each live an equal distance away from the registrar’s office, are in the exact same 

position.” Finding that there was no discriminatory impact, the district court 

granted Secretary Merrill’s motion for summary judgment on Plaintiffs’ Section 2 

claim. For the reasons set forth below, we affirm.

Our analysis begins with the statute. Section 2 of the VRA states:

(a) No voting qualification or prerequisite to voting or standard, 

practice, or procedure shall be imposed or applied by any State or 

political subdivision in a manner which results in a denial or 

abridgement of the right of any citizen of the United States to vote on 

account of race or color, or in contravention of the guarantees set forth 

in section 10303(f)(2)[42] of this title, as provided in subsection (b).

42 Section 10303(f)(2) prohibits any voting qualification or practice that results in the denial or 

abridgement of the right to vote protections for members of a language minority group. Voting 

Rights Act Amendments of 1975, Pub. L. No. 94-73; 52 U.S.C. § 10303(f)(2) (“No voting 

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(b) A violation of subsection (a) is established if, based on the totality 

of circumstances, it is shown that the political processes leading to 

nomination or election in the State or political subdivision are not 

equally open to participation by members of a class of citizens protected 

by subsection (a) in that its members have less opportunity than other 

members of the electorate to participate in the political process and to 

elect representatives of their choice. . . .

52 U.S.C. § 10301(a)-(b) (emphasis added).

Unlike discrimination claims brought pursuant to the Fourteenth and 

Fifteenth Amendments, which require proof of both discriminatory intent and 

actual discriminatory effect, the language of Section 2(a) of the VRA requires only 

proof of discriminatory “results,” not of discriminatory intent. Chisom v. Roemer, 

501 U.S. 380, 403–04 (1991) (voter dilution case discussing the 1982 amendments 

to Section 2 of the VRA which removed the proof of intent requirement); Johnson 

v. Governor of State of Fla., 405 F.3d 1214, 1227 (11th Cir. 2005) (“Congress 

amended Section 2 of the Voting Rights Act so that a plaintiff could establish a 

violation without providing discriminatory intent.”). However, “[d]espite its broad 

language, Section 2 does not prohibit all voting restrictions that may have a 

racially disproportionate effect.” Id. at 1228. Rather, Section 2(b) “make[s] clear 

that an application of the results test requires an inquiry into the totality of the 

qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or 

applied by any State or political subdivision to deny or abridge the right of any citizen of the 

United States to vote because he is a member of a language minority group”).

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circumstances.” Chisom, 501 U.S. at 394. And, in looking into the totality of the 

circumstances, if “members of a protected class have less opportunity than other 

members of the electorate to participate in the political process and to elect 

representatives of their choice,” a violation is shown. Id. at 388 (internal 

quotations omitted). 

Thus, under the analysis set forth by the statutory text and embraced by the 

Supreme Court in Chisom and this Court in Johnson, we must consider whether the 

challenged law results in a denial or abridgment of the right to vote on account of 

race or color. This analysis turns on whether, based on the totality of the 

circumstances, the challenged law violates Section 2(a) because it deprives 

minority voters of an equal opportunity to participate in the electoral process and

to elect representatives of their choice.

In support of their Section 2 claim, Plaintiffs point to disparate voter ID 

possession rates and disparate burdens placed on minority voters—travel 

disparities, socioeconomic disparities, and lack of Spanish-language materials—as 

evidence that HB19 violates Section 2 by resulting in a discriminatory effect. 

Plaintiffs’ expert identified a total of 118,000 Alabamians who lack proper IDs: 

50,000 Alabama voters who do not possess any photo ID that would permit them 

to vote and another approximately 68,000 voters who possess IDs that potentially 

could not be used to vote (i.e., IDs with a discrepancy between the information on 

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a voter roll and the ID). Plaintiffs also argue that black voters are twice as likely as 

white voters to lack a photo ID. 

In contrast to Plaintiffs’ 118,000 estimate, however, Merrill’s expert 

estimated that only approximately 32,000 registered voters lack a photo ID that 

passes muster under the law and that there is only a 1% difference between white 

and minority voters in that regard. Secretary Merrill also argues that no voter will 

be denied an equal opportunity to vote because the Alabama law allows a large 

variety of IDs to be utilized and Alabama makes it very easy to obtain a necessary 

voter photo ID if one is lacking. 

As an initial matter, Plaintiffs just barely clear the hurdle of demonstrating 

that minority voters are less likely than white voters to possess photo ID. Even if

Plaintiffs’ estimate of the number of minority voters without a plainly compliant 

photo ID is correct, the number of Alabama voters who lack photo ID is miniscule 

compared to the overall state population of eligible voters. It is undisputed that 

approximately 99% of white voters and 98% of black voters possess a photo ID. 

Plaintiffs, however, continue to argue that black and Latino voters are about twice 

as likely as white voters to lack a valid voter photo ID. Plaintiffs arrive at their 

“twice as likely” statement by comparing the 1% of white voters who lack valid 

photo ID to the 2% of minority voters who lack a valid photo ID. But, as the 

Secretary noted in his brief, when Plaintiffs represent percentages in this way, it “is 

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a misuse of data” that “mask[s] the fact that the populations were effectively 

identical.” Frank v. Walker, 768 F.3d 744, 753 n.3 (7th Cir. 2014). There is only a 

1% difference between the ID possession rates of white and minority Alabama 

voters.

Even though minority voters in Alabama are slightly more likely than white 

voters not to have compliant IDs, the plain language of Section 2(a) requires more. 

First, the challenged law has to “result in” the denial or abridgement of the right to 

vote. Second, the denial or abridgement of the right to vote must be “on account of 

race or color.” In other words, the challenged law must have caused the denial or 

abridgement of the right to vote on account of race. As Judge Tjoflat noted in his 

concurrence to our holding in Johnson, the words “on account of” contained in 

section 2(a) “suggest a causation requirement.” Johnson, 405 F.3d at 1238 

(Tjoflat, J., specially concurring) (stating that the “minimum content of such a 

case” requires a “showing that racial bias in the relevant community caused the 

alleged vote-denial or abridgment.”). A number of our sister circuits have either 

expressly or in essence agreed. The Fourth Circuit, presented with a challenge to a 

photo ID law, refused to make the “unjustified leap from the disparate 

inconveniences that voters face when voting to the denial or abridgement of the 

right to vote.” Lee v. Virginia State Board of Elections, 843 F.3d 592, 600–01 (4th 

Cir. 2016) (emphases in original). The Sixth Circuit, in evaluating a challenge to a 

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change in Ohio’s early voting laws, noted that beyond some statistical disparities, 

“the record does not establish that [the state law] . . . actually makes voting harder

for African Americans.” Ohio Democratic Party v. Husted, 834 F.3d 620, 631 (6th 

Cir. 2016) (emphasis in original). The Seventh Circuit, in analyzing Wisconsin’s 

photo ID law, noted that “[a]lthough these findings [of statistical disparities in ID 

possession rates] document a disparate outcome, they do not show a ‘denial’ of 

anything by Wisconsin, as § 2(a) requires; unless Wisconsin makes it needlessly

hard to get photo ID, it has not denied anything to any voter.” Frank v. Walker, 

768 F.3d 744, 753 (7th Cir. 2014) (emphasis in original). The Ninth Circuit, in 

analyzing an Arizona law which required proof of citizenship to register to vote 

and the presentation of ID at the polls, stated that “proof of ‘causal connection 

between the challenged voting practice and a prohibited discriminatory result’ is 

crucial.” Gonzalez v. Arizona, 677 F.3d 383, 405 (9th Cir. 2012) (quoting Smith v. 

Salt River Project Agric. Improvement & Power Dist., 109 F.3d 586, 595 (9th Cir. 

1997)). And, as Judge Jones so clearly stated in her dissent from the Fifth Circuit’s 

holding in Veasey v. Abbott, “[u]sing the textualist approach to Section 2, a vote 

abridgement claim . . . requires a causal connection between the challenged 

regulation and the disparate impact.” 830 F.3d at 311 (Jones, J., dissenting); see 

also id. at 312 (“A tailored causation analysis is imperative under Section 2 case 

law.”).

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In this case, there is no evidence that the challenged law either “resulted in”

the denial or abridgement of the right to vote or that any such denial or 

abridgement of the right to vote was “on account of race or color” under Section 

2(a). 52 U.S.C. § 10301(a). Lacking a showing of evidence necessary to 

demonstrate the “sort of causal connection between racial bias and disparate effect 

necessary to make a vote-denial claim” dooms Plaintiff’s claims. Johnson, 405 

F.3d at 1239 (Tjoflat, J., specially concurring). Nonetheless, Plaintiffs have also 

submitted evidence that relates to the factors set forth by the Supreme Court in 

Thornburg v. Gingles, 478 U.S. 30, 44 (1986).43 Plaintiffs argue that the district 

court, in failing to analyze these Gingles factors, erred.

The Gingles factors provide a way to examine, in certain circumstances, the 

totality of the circumstances provided for in Section 2(b) of the Voting Rights Act. 

Id. In Gingles, the Court stated that “[i]n order to answer this question [posed by 

2(b)], a court must assess the impact of the contested structure or practice on 

minority electoral opportunities on the basis of objective factors.” Id. (internal 

quotations omitted). As an initial (and critically important) matter, Gingles

involved a state’s redistricting plan that was challenged as impermissible vote 

43 These factors are also called the “Senate factors” because they were “detailed in a Senate 

Report accompanying the 1982 amendments.” Johnson, 405 F.3d at 1227 n.26.

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dilution. This case, however, involves claims of vote denial—a very different type 

of claim, as we discuss below. 

Under Gingles, plaintiffs alleging vote dilution must first show the existence 

of three preconditions for multimember districts to impair minority voting: (1) “the 

minority group must be able to demonstrate that it is sufficiently large and 

geographically compact to constitute a majority in a single-member district,” (2)

“the minority group must be able to show that it is politically cohesive,” and (3)

“the minority must be able to demonstrate that the white majority votes sufficiently 

as a bloc to enable it . . . to defeat the minority’s preferred candidate.” Id. at 50–51.

If these preconditions are met, plaintiffs can proceed under the Gingles factors: 

the history of voting-related discrimination in the State . . .; the extent 

to which voting in the elections of the State . . . is racially polarized; 

the extent to which the State . . . has used voting practices or 

procedures that tend to enhance the opportunity for discrimination 

against the minority group, such as unusually large election districts, 

majority vote requirements, and prohibitions against bullet voting; the 

exclusion of members of the minority group from candidate slating 

processes; the extent to which minority group members bear the 

effects of past discrimination in areas such as education, employment, 

and health, which hinder their ability to participate effectively in the 

political process; the use of overt or subtle racial appeals in political 

campaigns; and the extent to which members of the minority group 

have been elected to public office in the jurisdiction.

Id. 478 U.S. 30 at 44–45 (citing S.Rep., at 28–29, U.S. Code Cong. & Admin. 

News 1982, pp. 206-207) (internal quotations omitted). The Gingles Court also 

identified additional factors that have had probative value: “evidence 

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demonstrating that elected officials are unresponsive to the particularized needs of 

the members of the minority group” and evidence “that the policy underlying the 

State’s . . . use of the contested practice or structure is tenuous may have probative 

value.” Id. at 45 (citing S.Rep., at 29, U.S. Code Cong. & Admin. News 1982, p. 

206).

As a threshold matter, we question the applicability of Gingles to this case. 

Gingles was a vote dilution case and this case involves vote denial, a 

fundamentally different claim. And the Gingles factors themselves bear no 

resemblance to the facts of this case. For example, Plaintiffs are not pointing to 

unusually large election districts, majority vote requirements, prohibitions against 

bullet voting, candidate slating processes, racial appeals in political campaigns, or 

minorities being elected to public office. How, then, can we apply the factors in 

this case? The obvious answer is that we cannot. We will attempt to do so, 

however, in order to demonstrate the futility of the exercise.

As a starting point, and as additional evidence that the Gingles factors are 

inapplicable, we note that Plaintiffs have failed to show the existence of the three 

Gingles preconditions. Their arguments make no mention of the three “necessary 

preconditions” and they make no attempt to articulate the existence of the

“compactness/numerousness, minority cohesion or bloc voting, and majority bloc 

voting” we consider “generally necessary to prove a § 2 claim.” Johnson v. De 

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Grandy, 512 U.S. 997, 1011 (1994) (citing Gingles, 478 U.S. at 50). While this 

failure clearly dooms Plaintiffs’ Gingles argument, we nonetheless turn to the 

specific factors.

Regarding the first two Gingles factors, Plaintiffs claim that “it is undisputed 

that Alabama has a history of voting-related discrimination [Factor 1] . . . [and 

there] is also no dispute that Alabama elections are racially polarized (Factor 2), 

which provided the Legislature an incentive to discriminate against voters of 

color.” While we credit Plaintiffs’ argument about Alabama’s history of votingrelated discrimination, we also reiterate our caution against allowing the old, 

outdated intentions of previous generations to taint Alabama’s ability to enact 

voting legislation. Likewise, Plaintiffs provide no concrete evidence of current 

racially polarized voting, choosing instead to rely on the contemporaneous 

statements and discriminatory intent arguments we have already found wanting. 

Plaintiffs’ evidence of the third Gingles factor—“the extent to which the 

State . . . has used voting practices or procedures that tend to enhance the 

opportunity for discrimination against the minority group”—relates primarily to 

the “Positively Identify Provision” of the Alabama voter ID law. Plaintiffs argue 

that the PIP and Secretary Merrill’s administrative decisions regarding the 

implementation of the PIP “enhance the opportunity for discrimination against” 

Alabama’s minority voters. But Plaintiffs’ argument that the Secretary “instructs 

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election officials not to rely on objective criteria (such as non-photo ID) in 

deciding whether to allow a voter to use the PIP, resulting in a subjective process” 

misstates the PIP’s role in Alabama elections.44 As we discuss at length in Section 

3 of this opinion, the PIP is a failsafe provision meant to provide voters who do not 

have photo identification in their possession, or who opt not to cast a provisional 

ballot, with another opportunity to vote. It does not replace the objective, neutral 

requirement that a voter present a valid photo ID. And Plaintiffs’ expert testimony 

that fewer black voters know their poll workers is largely irrelevant because there 

is no indication that the state of Alabama has “used voting practices or procedures” 

to prevent minority voters from getting to know their poll workers. Absent 

evidence of state action that “enhance[s] the opportunity for discrimination,” we 

cannot say that Factor 3 supports Plaintiffs. 

In support of the fifth Gingles factor45 (“the extent to which minority group 

members bear the effects of past discrimination in areas such as education, 

employment, and health, which hinder their ability to participate effectively in the 

44 Plaintiffs also note that “the Governor’s decision to partially close the driver’s license issuing 

offices in eight of the eleven majority-Black counties in Alabama for the entire of the 2016 

election season was a policy that enhanced HB19’s discriminatory effect.” But the Governor is 

not a party in this case and his actions are not at issue here. Moreover, Plaintiffs provide no 

evidence that the Governor’s decision was in any way related to the Alabama voter ID law. Even 

if we assume this evidence may support Plaintiffs’ argument, this one factor alone would not, 

based on the totality of the circumstances, persuade us that a violation of Section 2 has occurred. 

45 Plaintiffs do not address the fourth factor, “the exclusion of members of the minority group 

from candidate slating processes.”

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political process”), Plaintiffs argue that it is not seriously disputed that minority 

voters in Alabama bear the effects of discrimination. Plaintiffs again reiterate the 

poverty and increased barriers to acquiring ID faced by minority voters. As we 

have already discussed, however, the photo ID law itself and its implementation

undercut these arguments. First, the law permits voters to utilize a wide range of 

photo IDs. Second, the State’s willingness to cover the cost of obtaining a birth 

certificate or other required documentation significantly mitigates, if not

eliminates, the external costs of proving one’s identity. Third, the availability of 

mobile unit locations and home visits largely dispense with the need for 

transportation.

Plaintiffs argue that the mobile unit does not ensure that all Alabamians have

access to a voter ID and that the Secretary’s statement to the contrary goes to the 

Secretary’s credibility. In short, Plaintiffs view the question of the adequacy of the 

mobile unit as a question of material fact that must be decided at trial. We disagree. 

As a threshold matter, despite the dissent’s protests to the contrary, Plaintiffs have 

provided no evidence countering the Secretary’s statements showing that the 

mobile unit is sufficient.46 Absent evidence to the contrary, there is no real dispute 

on this point. 

46 At oral argument, Plaintiffs’ counsel acknowledged that, although the mobile unit had made 

home visits five times, there is no evidence that any individuals who wished to obtain a voter ID 

were unable to get one.

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Appellants also argue that the “penalty of perjury” threat tied to obtaining a 

voter ID card chills interest among minority voters. To support this argument, 

Plaintiffs point to the personal opinion of Merrill’s former Chief Legal Advisor 

and Counsel for Elections and Administration, who believes it is possible that 

“penalty of perjury” may have a chilling effect on photo voter ID applications. But 

they can point to no named Plaintiff—or any citizen of Alabama—that has 

refrained from applying due to the penalty of perjury. This argument is speculative, 

at best.

Accordingly, the evidence provided by Plaintiffs related to the fifth Gingles 

factor is unpersuasive. 

In addressing the sixth Gingles factor, Plaintiffs again point to the racial 

statements made during HB19’s passage as “the use of overt or subtle racial 

appeals in political campaigns.” But the evidence provided by Plaintiffs is as 

unsuccessful in proving the sixth Gingles factor as it was in proving discriminatory 

intent. We are not persuaded that the statements made by Alabama legislators 

constitute “overt or subtle racial appeals in political campaigns.” 

Furthermore, in examining the seventh Gingles factor, “the extent to which 

members of the minority group have been elected to public office” in Alabama,

Plaintiffs argue that voters of color are underrepresented in the Alabama 

legislature. Plaintiffs argue that such underrepresentation “limited their influence 

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in the legislative process that led to HB19’s passage” and pursuant to the eighth 

Gingles factor, insist that the legislature was unresponsive to the needs of minority 

voters by failing to consider amendments to HB19. But, in reviewing these 

arguments, we return to the language in Section 2(b). Gingles explicitly highlights 

the text of the statute, which “cautions that ‘nothing in [§ 2] establishes a right to 

have members of a protected class elected in numbers equal to their proportion in 

the population.” Gingles, 478 U.S. at 43 (citing 52 U.S.C. § 10301(b)). The 

inability of Alabama legislators to prevent HB19’s passage and, relatedly, the 

ability of the Legislature’s majority party to block amendments is a result of the 

legislative process. 

Plaintiffs address the ninth and final Gingles factor—“that the policy 

underlying the State’s . . . use of the contested practice or structure is tenuous”—by

attacking Alabama’s voter fraud justification as “tenuous and pretextual.” In short, 

Plaintiffs argue that there is no connection between Alabama’s interest in 

combatting voter fraud and the voter ID law at issue in this case. This argument 

fails because the Supreme Court has already held that deterring voter fraud is a 

legitimate policy on which to enact an election law, even in the absence of any 

record evidence of voter fraud.

47 See Crawford, 553 U.S. at 192-97 (“The only 

47 We focus on the voter fraud justification because it is the only justification directly attacked by 

Plaintiffs. We note that Alabama’s additional justifications of increasing confidence in elections 

and modernizing Alabama’s elections procedures are also valid under the Supreme Court’s 

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kind of voter fraud that [the law] addresses is in-person voter impersonation at 

polling places. The record contains no evidence of any such fraud actually 

occurring in Indiana at any time in its history. . . It remains true, however, that 

flagrant examples of such fraud in other parts of the country have been 

documented . . . While the most effective method of preventing election fraud may 

well be debatable, the propriety of doing so is perfectly clear.”). Simply put, 

Secretary Merrill was not required to prove that voter fraud exists—yet he has 

done so by providing evidence of proven in-person impersonation voter fraud in 

Alabama. Because the Supreme Court’s precedent in Crawford mandates the 

validity of Alabama’s policy justifications and because Secretary Merrill has 

provided evidence of previous voter fraud, the final Gingles factor weighs heavily 

in favor of Secretary Merrill. 

In summary, even if the Gingles factors did apply to this vote denial case, 

Plaintiffs have not provided sufficient evidence that would permit a reasonable 

factfinder to conclude that minority voters, pursuant to Section 2(b), had “less 

opportunity than other members of the electorate to participate in the political 

process.” 52 U.S.C. § 10301(b). Ultimately, however, this case highlights the 

holding in Crawford. These justifications further support our determination that the final Gingles 

factor supports Secretary Merrill’s argument. 

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fundamental misalignment between the Gingles factors and this case. Thus, the 

district court’s failure to analyze them is not error.

3. Violation of Section 201 of the Voting Rights Act

Plaintiffs also attack the law’s option for voters to be “positively identified” 

by election officials, arguing that the PIP is a voting “test or device” and “violates 

the prohibition on those tests or devices enumerated in Section 201 of the Voting 

Rights Act, 52 U.S.C.A. § 10501, by requiring, as a prerequisite to voting, that 

otherwise eligible registered voters who lack the required photo ID prove their 

qualifications by the voucher of two election officials.” 48 Secretary Merrill argues 

that the PIP does not violate Section 201 because it is not a requirement to vote, 

nor does it require a voter to prove his or her qualifications. 

Section 201 of the VRA prohibits voting tests or devices as follows: 

(a) No citizen shall be denied, because of his failure to comply with 

any test or device, the right to vote in any Federal, State, or local 

election conducted in any State or political subdivision of a State.

(b) As used in this section, the term “test or device” means any 

requirement that a person as a prerequisite for voting or registration for 

voting (1) demonstrate the ability to read, write, understand, or interpret 

any matter, (2) demonstrate any educational achievement or his 

knowledge of any particular subject, (3) possess good moral character, 

or (4) prove his qualifications by the voucher of registered voters or 

members of any other class.

48 Plaintiffs have interpreted the PIP as an impermissible “voucher,” due to the Secretary’s 

interpretation that individuals may “vouch” for voters. Appellants summarize the Secretary’s 

position thusly: “The Secretary interprets the PIP to mean that a person without HB19 ID may vote 

only if election officials, at their discretion, vouch for that person’s identity based solely upon 

personal acquaintance.” 

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52 U.S.C. § 10501(a)-(b). The key statutory language governing our review of the 

PIP is Section 201(b)’s definition of a “test or device”: “the term ‘test or device’ 

means any requirement that a person as a prerequisite for voting or registration for 

voting . . . prove his qualifications by the voucher of registered voters or members 

of any other class.” Id. 

The Alabama 2011 voter ID law defines the PIP as follows: 

In addition, an individual who does not have valid photo identification

in his or her possession at the polls shall be permitted to vote if the 

individual is positively identified by two election officials as a voter on 

the poll list who is eligible to vote and the election officials sign a sworn 

affidavit so stating.

Ala. Code § 17-9-30(e) (emphasis added). The district court concluded that the PIP 

is not a prohibited device or test because the PIP is not actually a voucher

requirement or prerequisite to vote.

As an initial matter, we note that the PIP at issue in this case contains the 

same PIP language that was pre-cleared by the Department of Justice as a 

“failsafe” provision in 2003. To the extent the PIP did not violate section 201 of 

the VRA then, it does not do so now.

Further, the clear language of the PIP demonstrates it does not contain an 

impermissible voting test or device but rather provides an alternate voting path in 

the event the voter does not have a photo ID. The PIP is simply one more option

for proving one’s identity; it is a “failsafe” so that “voters who do not have 

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identification in their possession at the polls may vote” provision. Thus, contrary to 

Plaintiffs’ assertions, the PIP actually increases the opportunities for minority 

voters to be able to cast a ballot. On this point, the district court’s analysis is 

instructive:

This argument [that the PIP is an impermissible test or device] fails to 

take into account that obtaining a photo ID provides an objective, 

guaranteed option of proving one’s identity that pre-VRA voter laws 

with tests and devices lacked. Alabama voters can always present a 

photo ID and avoid reliance on the positively identify provision. In 

other words, no voter is required, as a prerequisite to vote or register, 

to be positively identified by an election official. In fact, the positively 

identify provision gives more voters, including minority voters, the 

opportunity to vote. Even if a voter does not have a photo ID, he can 

still vote if he is positively identified by election officials. Accordingly, 

because the positively identify provision is not a requirement or 

prerequisite to voting, it is not a voucher within the meaning of the 

VRA’s ban on tests and devices. 

Greater Birmingham Ministries v. State, 161 F. Supp. 3d 1104, 1116 (N.D. Ala. 

2016) (denying Plaintiffs-Appellants’ request for a preliminary injunction to enjoin 

application of the positively identify provision) (emphasis added). 

Additionally, even in situations where an individual lacks a photo ID, the 

PIP is only one of the options available to voters. There are actually two options 

available to a voter lacking a valid ID: (1) use the PIP as a means of identification, 

or (2) cast a provisional ballot and “cure” that ballot by later presenting a photo ID 

at the registrars’ office by the Friday of election week. Thus, Plaintiffs are 

incorrect in arguing that would-be voters without valid ID “may vote only if” the 

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election official identify them because, as Secretary Merrill points out, these voters 

can instead “vote a provisional ballot that may be cured by bringing a photo ID to

the registrars’ office by the Friday following Election Day.” And an individual 

voter lacking a photo ID can obtain one from the Secretary or from the registrars’

office. The district court correctly found that “[t]he facts...related to the ease of 

obtaining a photo ID show that no one in Alabama is ‘required’ to rely on the 

positively identify provision because they have the option of acquiring a photo ID 

with little to no effort and no cost.” Greater Birmingham Ministries, 284 F. Supp. 

3d at 1282.

The PIP in this case is distinctly different from the inherently discriminatory 

voucher in United States v. Logue, 344 F.2d 290 (5th Cir. 1965), because positive 

identification by another individual is not a requirement to vote in Alabama. 

In Logue, the Fifth Circuit reversed the denial of an injunction prohibiting 

Alabama from enforcing a requirement that any person registering to vote had to 

produce a qualified voter (a “supporting witness”) to vouch for such voter. Id. at 

291. Because it was more difficult for black Alabamians to find registered voters to 

vouch for them, the requirement effectively denied their right to register and vote

and thus was impermissible. Id. Here, however, if an Alabama voter possesses a 

photo ID, or opts to cast a provisional ballot, that voter does not need to be

separately identified by another individual in order to cast his or her vote. The PIP 

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only applies when a voter arrives at the polls without a valid photo ID and it is only 

one option available to that voter to be able to cast a vote.

Lastly, Plaintiffs argue that the district court erred “by suggesting that, even 

if the voucher test were a voting requirement, it would only be invalid if it were 

used in an ‘improper manner.’” But Plaintiffs mischaracterize the district court’s 

finding, which specifically states that the court “need not determine whether [the 

PIP] is being used in an improper manner,” before noting that “evidence on this 

record shows that it is not.” Greater Birmingham Ministries, 284 F.Supp. at 1282–

83. The court merely underscored the point that Plaintiffs have not presented any 

evidence that the PIP was used in an improper manner.

For all of these reasons, we hold that the PIP is valid. 

IV. CONCLUSION

The burden of providing a photo ID pursuant to Ala. Code § 17-9-30 in 

order to vote is a minimal burden on Alabama’s voters—especially when Alabama 

accepts so many different forms of photo ID and makes acquiring one simple and 

free for voters who lack a valid ID but wish to obtain one. The Alabama voter ID 

law does not violate the Fourteenth and Fifteenth Amendments of the Constitution, 

nor does it violate the Voting Rights Act.

Because Plaintiffs have failed to identify any genuine disputes of material 

facts and because no reasonable factfinder could find that Alabama’s voter ID law 

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is unconstitutionally discriminatory based on the evidence presented, we AFFIRM 

the decision of the district court.

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GAYLES, District Judge, dissenting: 

Courts in this Circuit have long recognized “Alabama’s deep and troubled 

history of racial discrimination” and voter suppression. I.L. v. Alabama, 739 F.3d 

1273, 1288 (11th Cir. 2014).

To some extent, [t]hings have changed in the South. Certain things, 

however, remain stubbornly the same. In an era when the degree of 

racially polarized voting in the South is increasing, not decreasing, 

Alabama remains vulnerable to politicians setting an agenda that 

exploits racial differences. The Beason and Lewis recordings represent 

compelling evidence that political exclusion through racism remains a 

real and enduring problem in [Alabama]. Today, while racist 

sentiments may have been relegated to private discourse rather than on 

the floor of the state legislature, it is still clear that such sentiments 

remain regrettably entrenched in the high echelons of state government. 

United States v. McGregor, 824 F. Supp. 2d 1339, 1347 (M.D. Ala. 2011) (first 

alteration in original) (internal quotation marks and citations omitted).

* * * *

Congress enacted the Voting Rights Act of 1965 (“VRA”) after recognizing 

that early efforts to combat racial discrimination in states like Alabama were 

ineffective. “The Voting Rights Act . . . is widely considered to be among the most 

effective civil rights statutes ever passed by Congress.” Ala. State Conference of 

Nat’l Ass’n for Advancement of Colored People v. Alabama, 949 F.3d 647, 649 

(11th Cir. 2020). When enacted, the VRA contained several provisions. Section 2 

“prohibits states from imposing election practices that result in racial 

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discrimination.” Id. In particular, “Section 2 . . . prohibits ‘any State or political 

subdivision’ from imposing any ‘voting qualification or prerequisite to voting or 

standard, practice, or procedure’ that ‘results in a denial or abridgement of the right 

of any citizen of the United States to vote on account of race [or color].’” Id. at 651 

(citing 52 U.S.C. § 10301(a)).

The VRA also included special provisions targeted to specific “[s]tates and 

localities where opposition to the Constitution’s commands were most virulent 

. . . .” Shelby Cnty., Ala. v. Holder, 570 U.S. 529, 562 (2013) (Ginsburg, J., 

dissenting). “Section 5 govern[ed] changes in voting procedures, with the purpose 

of preventing jurisdictions covered by its requirements from enacting or seeking to 

administer voting changes that have a discriminatory purpose or effect.” Lopez v. 

Monterey Cnty., 519 U.S. 9, 12 (1996). Section 5’s preclearance requirement 

prohibited certain jurisdictions from implementing any change in their voting 

procedures without first submitting the changes to the Department of Justice or to a 

panel of three judges. 

Section 4(b) set forth a coverage formula to determine which jurisdictions 

were subject to Section 5’s preclearance requirement. Under the formula, 

“covered” jurisdictions included states or political subdivisions “that had 

maintained a test or device as a prerequisite to voting as of November 1, 1964, and 

had less than 50 percent voter registration or turnout in the 1964 Presidential 

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election.” Shelby Cnty., 570 U.S. at 537 (citing § 4(b), 79 Stat. 438). Tests or 

devices included literacy tests, educational or knowledge requirements, proof of 

good moral character, and/or vouchers from registered voters. Id. (citing § 4(c), 79 

Stat. 438-39). In 1965, Alabama, Georgia, Louisiana, Mississippi, South Carolina, 

and Virginia were covered jurisdictions and could only obtain preclearance for 

changes in their voting laws by proving that the proposed change in law “had 

neither ‘the purpose [nor] the effect of denying or abridging the right to vote on 

account of race or color.’” Id. (quoting § 5, 79 Stat. 439) (alteration in original).

Sections 4 and 5 were to expire after five years but, in 1970, Congress 

reauthorized them and extended Section 4(b)’s coverage to include “jurisdictions 

that had a voting test and less than 50 percent voter registration or turnout as of 

1968.” Id. at 538 (citing VRA Amendments of 1970, §§ 3–4, 84 Stat. 315). 

Congress reauthorized the VRA again in 1975, 1982, and 2006. Id. at 538–39. By 

2006, Section 5 forbade “voting changes with ‘any discriminatory purpose’ as well 

as voting changes that diminish[ed] the ability of citizens, on account of race, color 

or language minority status, ‘to elect their preferred candidates of choice.’” Id. at 

539 (quoting 42 U.S.C. § 1973c(b)–(d)). Through each reauthorization, Alabama 

remained a covered jurisdiction under the VRA and faced challenges to its voting 

procedures under Section 2. Id. at 582 (Ginsburg, J., dissenting) (“Between 1982 

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and 2005, Alabama had one of the highest rates of successful § 2 suits, second only 

to its VRA-covered neighbor Mississippi.” (citation omitted)). 

In 2013, the Supreme Court issued its opinion in Shelby County, holding 

Section 4(b)’s coverage formula unconstitutional. Id. at 557. As a result, Alabama 

was no longer required to seek preclearance to change its voting laws. It was 

against this historical backdrop that the Alabama Legislature implemented the 

Photo ID Law1 at issue here. 

I. Passage of Alabama’s Photo ID Law2

Voter fraud in Alabama is rare. While there have been some limited cases of 

absentee voter fraud, in-person voter fraud is virtually non-existent. See Greater 

Birmingham Ministries v. Merrill, 284 F. Supp. 3d 1253, 1257 (N.D. Ala. 2018) 

(“While cases of proven in-person voter fraud in Alabama are extremely rare, there 

are some documented cases of absentee voter fraud in Alabama in recent 

history.”).3 Indeed, Defendant presented evidence of only two cases of in-person 

1

 The District Court referred to the law as the “Photo ID Law,” and the majority opinion refers 

to it as the “voter ID law.” For purposes of this dissent, I refer to the law at issue as the Photo ID 

Law.

2

 Like the majority opinion, I rely on the undisputed facts set forth in the parties’ Corrected Joint 

Status Report filed with the District Court.

3

 To the extent voter fraud exists in Alabama, the record reflects the following abuses as cited in 

a 1996 article in the Birmingham News: (1) absentee ballots cast in the names of dead people 

and people who have moved; (2) absentee ballots mailed to unregistered voters; (3) absentee 

ballots being removed from mailboxes; (4) intimidation of poor and elderly voters who are made 

to turn over their absentee ballots; (5) pressuring and soliciting nursing home patients; (6) vote 

buying; and (7) bulk mailing of absentee ballots by just a few individuals. See Greater 

Birmingham Ministries, 284 F. Supp. 3d at 1257 (emphasis added). 

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voter fraud in Alabama’s history. Despite the lack of in-person voter fraud, 

Secretary Merrill claims Alabama enacted the Photo ID Law to combat voter fraud 

and to restore confidence in elections—a dubious position in light of the facts. A 

close look at the history and the timing of the legislation and its actual impact on 

Black and Latino4 voters gives us a window into why Alabama likely designed a 

law to cure a problem that did not exist. 

A. History and Timing of the Photo ID Law

From 2000 to 2002, the Alabama House attempted to pass various voter 

identification bills. White legislators overwhelmingly favored these bills while 

Black legislators opposed them because of the potential impact on Black voters. At 

the same time, the Alabama Black Caucus pushed for a bill to re-enfranchise felon 

voters who were disproportionately Black. The competing measures resulted in a 

two-year standoff. Finally, on the last day of the 2003 Legislative Session, both a 

voter identification bill and a re-enfranchisement bill passed after both sides agreed 

not to filibuster. Governor Bob Riley signed the voter identification bill into law 

but vetoed the re-enfranchisement bill. After facing opposition from Black 

legislators to a tax referendum and a threatened NAACP boycott, Governor Riley 

relented and backed a modified re-enfranchisement bill. The modified bill was 

4

 Like the majority opinion, I use the term “Latino” because that is the term Plaintiffs/Appellants 

used in their briefing. Though Hispanic and Latino are often used interchangeably, I recognize 

that the terms do not necessarily mean the same thing.

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passed over a Republican filibuster in the House and opposition in the Senate led 

by Senator Larry Dixon.5

The 2003 voter identification law required each voter to provide valid photo 

identification or a copy of a utility bill, bank statement, government check, 

paycheck, or other government document that showed the name and address of the 

voter. From 2003 to 2010, repeated attempts to restrict the 2003 law to only permit 

photo identification failed because of opposition from Black legislators who were 

concerned about the potential disparate impact of a photo identification 

requirement on Black voters.

The 2010 elections produced a historic Republican landslide in Alabama 

with Republicans holding supermajorities in both the House and Senate. In 2011, 

one of the priorities of the newly-elected Alabama Legislature was to enact 

legislation requiring photo identification to vote. House Representative Kerry Rich 

sponsored HB 19 and Senators Scott Beason, Ben Brooks, Rusty Glover, Paul 

Sanford, Jabo Waggoner, and others co-sponsored an identical bill in the Senate. 

The House passed HB 19 by a largely party-line vote of 64-31. Senator Beason, the 

Senate’s Rules Committee Chairman, then added HB 19 to the “special order” 

calendar for June 9, 2011, the last day of the 2011 Legislative Session. The Senate 

5 Senator Dixon described the re-enfranchisement bill as “a very big Black Caucus issue, 

primarily because so many of the Black voters in the state would be benefited.” 

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invoked cloture and passed HB 19 on a straight party-line vote.6 All present Black 

senators voted against the bill. Governor Robert Bentley signed HB 19 into law on 

June 15, 2011.7

This Photo ID Law, by its terms, did not go into effect immediately; and 

Alabama never sought preclearance under Section 5 of the VRA. Then, on June 25, 

2013, the Supreme Court issued its opinion in Shelby County striking down Section 

4(b) of the VRA. Twenty-four hours later, Alabama’s Attorney General and 

Secretary of State announced that the Photo ID Law could then move forward 

without preclearance. On June 29, 2013, the Secretary of State issued proposed 

administrative rules for the Photo ID Law. On October 22, 2013, the Secretary of 

State issued final administrative rules.

B. Evidence that Discrimination was a Motivating Factor 

6 When cloture is invoked, the Senate must wait (typically, for 20 minutes) before voting. At 

least one senator recalls Republican leadership holding the microphone for those twenty minutes 

with respect to HB 19. 

7 In addition to passing HB 19, the same Alabama Legislature passed HB 56, an extensive 

immigration bill that required, among other things, proof of citizenship for voter registration. The 

legislators who sponsored HB 56 were largely the same as those who sponsored the Photo ID 

Law. This Court later held that federal law preempted several sections of HB 56, see United 

States v. Alabama, 691 F.3d 1269, 1280 (11th Cir. 2012), and that the section requiring 

verification of citizenship and immigration status of enrolling students violated the Equal 

Protection Clause, see Hispanic Interest Coalition of Alabama v. Governor of Alabama, 691 F.3d 

1236, 1249 (11th Cir. 2012). The same Legislature also passed a state legislative redistricting 

plan that was later deemed to, in part, violate federal law because race predominated over 

traditional districting criteria in several districts. Alabama Leg. Black Caucus v. Alabama, 231 F. 

Supp. 3d 1026, 1033 (M.D. Ala. 2017) (on remand from Alabama Leg. Black Caucus v. 

Alabama, 575 U.S. 254 (2015)).

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Statements made by some Alabama legislators about the need for a photo ID 

law are probative evidence of the Photo ID Law’s purpose—to suppress the 

minority vote. I start with Senator Larry Dixon. From the 1990s until his retirement 

in 2010, Senator Dixon sponsored photo identification bills like HB 19. During this 

time, Senator Dixon made repeated comments linking photo identification 

legislation to race, including “the fact you don’t have to show an ID is very 

beneficial to the Black power structure and the rest of the Democrats” and that 

voting without photo identification “benefits Black elected leaders, and that’s why 

they’re opposed to it.” While Senator Dixon retired in 2010, his influence can be 

seen in his recorded conversations with Senator Beason.

In 2010, Senator Beason recorded himself in a meeting with Senators Dixon, 

Brooks, Glover, Sanford, and Waggoner, Representative Lewis, and legislative 

staffer Monica Cooper. In the recordings, Senator Dixon stated: “[j]ust keep in 

mind if [a pro-gambling] bill passes and we have a referendum in November, every 

black in this state will be bused to the polls. And that ain’t gonna help” . . . 

“[e]very black, every illiterate” would be “bused on HUD financed buses.” Senator 

Brooks added: “They won’t be bused as much as they will be up to the gambling.” 

Senator Beason chimed in: “That’s right. That’s right. This will be busing extra.” 

Senator Dixon went on to state that coach buses “will meet at the gambling casino 

to get free certificates for black[s],” with Senator Brooks adding: “Free buffet.” 

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Not a single legislator present during this conversation objected to this racist 

language. In a separate recorded meeting, Representative Lewis asked whether the 

predominantly Black residents of Greene County were “y’all’s Indians?” Senator 

Beason responded by referring to Black people as “Aborigines.”8

In a February 2011 speech, Senator Beason encouraged Republicans to 

“empty the clip, and do what has to be done” on immigration and stated that 

“Democrats do not want to solve the illegal immigration problem because they 

know, this is a fact, that when more illegal immigrants move into an area, when 

their children grow up and get the chance to vote, they vote for Democrats.” 

Senator Beason also referred to the children of immigrants as “anchor babies.”

Representative Rich sponsored HB 19. In a statement posted on his personal 

website, Representative Rich expressed a concern that “[i]t is impossible for an 

area to assimilate the number of people that we have had forced on us.” 

Representative Rich was “primarily” concerned about “Hispanic” immigrants and 

their alleged inability “to speak English.” In his opening statement to the 

Legislature on HB 56, Representative Rich repeatedly conflated “illegal 

immigrants” and “Hispanics” when discussing the “kinds of social and economic 

8 On June 17, 2011, just days after the conclusion of 2011 Legislative Session and the passage of 

the Photo ID Law, Senator Beason’s recorded conversations became publicly known through the 

trial testimony in McGregor, 824 F. Supp. 2d at 1344–48. On November 15, 2011, Alabama 

Senate leadership stripped Senator Beason of his powerful position as Chair of the Senate Rules 

Committee. He remained, however, in the Alabama Senate until 2014. 

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problems” that HB 56 purportedly sought to address. Representative Rich stated 

that “[t]he major problem with illegals in [his] area is with Hispanics” and that he 

considered Latino U.S. citizens whose parents are undocumented to be a “drain on 

the taxpayers.” 

II. The District Court’s Order

In modern-day America, it is unusual to have such clear evidence that 

legislative leaders and sponsors of legislation are motivated by racial 

discrimination. And although the District Court recognized that “[i]n other election 

law cases, it has been appropriate for the trier of fact to engage in the delicate and 

highly fact-sensitive consideration of the kinds of testimony and historical facts 

that are summarized [in this case,]” Greater Birmingham Ministries, 284 F. Supp. 

3d at 1273, the District Court did not find it necessary here. Rather, on cross 

motions for summary judgment, the District Court found that Alabama’s Photo ID 

Law “does not in fact discriminate on the basis of race[,]” and, as a result, it did

not need to address the purpose of the law. Id. at 1274 (emphasis omitted). While it 

is undisputed “that registered voters of color in Alabama are statistically more 

likely than white voters to lack the required photo ID[,]” the District Court granted 

summary judgment to Secretary Merrill, finding “no one is prevented from 

voting.” Id. (emphasis in original). 

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On appeal, Plaintiffs argue the District Court erred in finding no disputed 

issues of material fact as to whether (1) the Photo ID Law violates Section 2 of the 

VRA; (2) the Photo ID Law has a discriminatory result/impact in violation of 

Section 2 of the VRA; (3) the Photo ID Law was adopted, at least in part, for a 

racially discriminatory purpose in violation of the Constitution; and (4) the 

Secretary’s interpretation of the Positively Identify Provision in the Photo ID Law 

is a prohibited “test or device” in violation of Section 201 of the VRA. I find that 

there are genuine issues of material fact as to both the discriminatory purpose and 

impact of Alabama’s Photo ID Law such that summary judgment should not have 

been granted on Plaintiffs’ constitutional or Section 2 VRA claims.

III. Summary Judgment Standard

Summary judgment, pursuant to Federal Rule of Civil Procedure 56(a), “is 

appropriate only if ‘the movant shows that there is no genuine issue as to any 

material fact and the movant is entitled to judgment as a matter of law.’” Tolan v. 

Cotton, 572 U.S. 650, 656–57 (2014) (per curiam) (quoting Fed. R. Civ. P. 56(a)). 

“By its very terms, this standard provides that the mere existence of some alleged 

factual dispute between the parties will not defeat an otherwise properly supported 

motion for summary judgment; the requirement is that there be no genuine issue of 

material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986) 

(emphasis in original). An issue is “genuine” when a reasonable trier of fact, 

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viewing all of the record evidence, could rationally find in favor of the nonmoving 

party in light of his burden of proof. Harrison v. Culliver, 746 F.3d 1288, 1298 

(11th Cir. 2014). And a fact is “‘material’ if, under the applicable substantive law, 

it might affect the outcome of the case.” Hickson Corp. v. N. Crossarm Co., 357 

F.3d 1256, 1259–60 (11th Cir. 2004). 

Courts must not “weigh conflicting evidence or make credibility 

determinations; the non-movant’s evidence is to be accepted for purposes of 

summary judgment.” Wate v. Kubler, 839 F.3d 1012, 1018 (11th Cir. 2016). 

Summary judgment is generally inappropriate in intentional discrimination cases 

because the “legislature’s motivation is itself a factual question.” Hunt v. 

Cromartie, 526 U.S. 541, 549 (1999). And summary judgment is generally not 

appropriate in Section 2 cases “due to the fact-driven nature of the legal tests 

required by the Supreme Court and our precedent.” Ga. State Conference of 

NAACP v. Fayette Cnty. Bd. of Comm’rs, 775 F.3d 1336, 1348 (11th Cir. 2015). 

IV. Plaintiffs’ Constitutional Claims 

To prevail on their Fourteenth and Fifteenth Amendment claims, Plaintiffs 

must show (1) that the Alabama Legislature intended to discriminate on the basis 

of race and (2) that the Photo ID Law had an actual discriminatory effect. See Vill. 

of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264–65 (1977) 

(holding that “official action will not be held unconstitutional solely because it 

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results in a racially disproportionate impact. . . . Proof of racially discriminatory 

intent or purpose is required to show a violation of the Equal Protection Clause.”). 

To make this determination, we are guided by the non-exhaustive list of factors 

enumerated by the Supreme Court in Arlington Heights, 429 U.S. at 266–68, and 

as supplemented in later cases, see Jean v. Nelson, 711 F.2d 1455, 1486 (11th Cir. 

1983). These factors include the racial impact of the decision, the historical 

background of the decision, the specific sequence of events, the departure from the 

normal procedural sequence, substantive departures, the legislative history, the 

foreseeability of the disparate impact, knowledge of the impact, and the availability 

of less discriminatory alternatives. Jean, 711 F.2d at 1486.

While acknowledging the necessity of analyzing Plaintiffs’ racial 

discrimination claims under Arlington Heights, the majority opinion goes to great 

lengths to discuss how this action is no different than Crawford v. Marion County 

Election Board, 553 U.S. 181 (2008). I respectfully disagree. In Crawford, there 

were no allegations that Indiana legislators passed Indiana’s photo identification 

law to discriminate on the basis of race. Here, Plaintiffs expressly allege that the 

Alabama Legislature enacted the Photo ID Law with the intent to suppress the 

votes of Black and Latino voters. In addition, the petitioners in Crawford did not 

present evidence of any individual plaintiff “who claimed that the law would deter 

them from voting[.]” Id. at 188. Here, Plaintiffs include Black and Latino 

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individuals who claim Alabama’s Photo ID Law impacts their ability to vote. 

Finally, unlike Alabama, Indiana was never required under the VRA to obtain 

preclearance to change its voting laws. With this in mind, I address the Arlington 

Heights factors. 

A. Impact9

The District Court found that “[i]t would serve no purpose” to consider the 

Arlington Heights factors other than racial impact because “a ruling in Plaintiff’s 

favor would do no more than hold that the Alabama Legislature intended to 

discriminate in enacting the Photo ID Law, but failed.” Greater Birmingham 

Ministries, 284 F. Supp. 3d at 1277. Relying on Palmer v. Thompson, 403 U.S. 217 

(1971), the District Court essentially concluded that, without impact, Alabama’s 

intent in passing the Photo ID Law is irrelevant. In Palmer, a municipality enacted 

a facially neutral law to close all public pools with the discriminatory intent to 

maintain segregation. A deeply divided Supreme Court upheld the municipality’s 

decision and held that discriminatory motive does not invalidate a facially neutral 

law. The Supreme Court has not expressly overturned Palmer, but it has all but 

done so in subsequent opinions. Over the past four decades, the Supreme Court has 

held that facially neutral laws may run afoul of the Equal Protection Clause if they 

9

 For the same reasons I find there are genuine issues of material fact as to impact, I find there 

are genuine issues of material fact as to Plaintiffs’ VRA claims, which require proof of 

discriminatory results. See Chisom v. Roemer, 501 U.S. 380, 403–04 (1991).

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are enacted or enforced with a discriminatory intent. See, e.g., Washington v. 

Davis, 426 U.S. 229, 244 n.11 (1976) (“To the extent that Palmer suggests a 

generally applicable proposition that legislative purpose is irrelevant in 

constitutional adjudication, our prior cases . . . are to the contrary[.]”); Hunter v. 

Underwood, 471 U.S. 222, 227–28 (1985) (holding that where “a neutral state law 

. . . produces disproportionate effects along racial lines . . . ‘[p]roof of racially 

discriminatory intent or purpose is required to show a violation of the Equal 

Protection Clause’” (quoting Arlington Heights, 429 U.S. at 264–65)). 

Although impact is one of the Arlington Heights factors, I do not agree that a 

limited impact protects otherwise discriminatory legislation. Indeed, under the 

District Court’s logic, Alabama could pass a law that expressly states that its 

purpose is to discriminate on the basis of race and, as long as that law is facially 

neutral or its disparate impact is minimal, it would withstand Fourteenth and 

Fifteenth Amendment challenges. This absurd result cannot be what the 

Constitution requires or the Supreme Court intends. But, even if I accept that the 

impact factor alone is dispositive, there are genuine issues of material fact as to the 

impact of the Photo ID Law on Alabama’s Black and Latino voters. 

The record clearly reflects factual disputes as to the true impact of the 

legislation on Black and Latino voters. Plaintiffs’ expert opined that there were 

around 50,000 registered voters in Alabama (or 1.67% of the registered voter 

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population) who may not have any forms of photo ID that may be used for voting, 

and that approximately 68,046 additional voters have photo IDs that may be 

contested at the polls. Plaintiffs’ expert also opined that 1.37% of White registered 

voters, 2.44% of Black registered voters, and 2.29% of Latino registered voters 

may not currently have an acceptable photo ID.10 Therefore, Black and Latino 

voters without acceptable photo IDs are nearly twice as likely to be affected by the 

Photo ID Law as White voters in the same predicament. The District Court, 

weighing the significance of that evidence, called the disparity “miniscule.” This 

was improper at summary judgment.

Small percentages are hard to quantify—especially without an analysis of 

the percentages in actual numbers. According to 2018 Alabama Voter Registration 

Statistics, there were 844,995 Black registered voters and 31,080 Hispanic 

registered voters in the state.11 Accepting at this stage Plaintiffs’ percentages of 

registered voters who may not have acceptable photo IDs, 20,618 Black registered 

voters and 712 Hispanic/Latino registered voters did not have acceptable photo IDs 

to vote in Alabama’s elections at the time summary judgment was granted. In a 

time where elections are closely decided, any impact on voter turnout may be 

10 Secretary Merrill’s expert also noted a racial disparity among potential Alabama voters, 

though the disparity was not as significant as Plaintiffs’ expert’s numbers.

11 “Voter Registration Statistics – 2018,” https://www.sos.alabama.gov/alabamavotes/voter/election-data (last visited July 17, 2020).

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significant and probative. Indeed, in 2017, United States Senator Doug Jones won 

his election over Roy Moore in Alabama by less than 1% point (21,924 votes).12

Therefore, a judge or jury at trial should decide whether the Photo ID Law’s 

potential impact on approximately 21,330 Black and Latino voters is meaningful. 

See Anderson, 477 U.S. at 255 (“Credibility determinations, the weighing of the 

evidence, and the drawing of legitimate inferences from the facts are jury 

functions, not those of a judge [when] ruling on a motion for summary judgment . . 

. .”). 

The record also reflects disputed issues of material fact regarding the ease 

with which Black and Latino voters are able to procure a photo ID that would 

enable them to vote under the Photo ID Law. It is a question of fact whether voters 

like Plaintiff Shameka Harris or former Plaintiff Debra Silvers can realistically get 

a photo ID.13 It is a question of fact whether the mobile ID unit is actually

available to any registered voter. The record reflects that during the time leading 

up to District Court’s order, the mobile ID unit made less than ten home visits, one 

of which only occurred because a state legislator personally requested it. Even 

Secretary Merrill’s own protocol requires voters seeking an accommodation to 

12 “Special Election Official Results,” https://www.sos.alabama.gov/alabamavotes/voter/election-night-official-results (last visited July 17, 2020).

13 Ms. Harris is a Black woman. She has no car, is on a fixed income, and must pay private 

individuals to drive her. Similarly, Ms. Silvers was a Black woman who lost all her valid forms 

of identification in a house fire. She did not live anywhere near the various locations she would 

have needed to visit to obtain a new social security card or new birth certificate. 

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detail their access to transportation before being granted a visit from the mobile 

unit. Despite these record facts, the District Court relied almost exclusively on 

Secretary Merrill’s self-serving statements to find that “it is so easy to get a photo 

ID in Alabama, no one is prevented from voting.” This credibility determination is 

error. See id.

B. Purpose

The Supreme Court has made it clear that “[d]etermining whether invidious 

discriminatory purpose was a motivating factor demands a sensitive inquiry into 

such circumstantial and direct evidence of intent as may be available.” Arlington 

Heights, 429 U.S. at 266; see also Hunt, 526 U.S. at 549 (“The legislature’s 

motivation is itself a factual question.”). Unlike the District Court, the majority 

opinion does address the purpose factor. However, I must respectfully dissent as 

the majority opinion also appears to weigh conflicting evidence and make 

credibility determinations. For example, the majority opinion accepts as true 

Secretary Merrill’s assertions to find that the Alabama Legislature did not intend to 

discriminate against Black and Latino voters despite overtly racist comments by 

the very sponsors and advocates of the Photo ID Law. 

While the District Court found no need to analyze the history and purpose of 

the Photo ID Law, the majority opinion essentially ignores impact. In determining 

purpose, impact “may provide an important starting point.” Arlington Heights, 429 

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U.S. at 266. Indeed, the impact of the legislation can inform purpose. It is 

undisputed that (1) Alabama’s Photo ID Law has a disparate impact according to 

race and that thousands of minority voters may be affected, (2) some Alabama 

legislative leaders and sponsors of the Photo ID Law had the intent to suppress 

minority voters, and (3) Alabama passed the Photo ID Law to solve a problem with 

in-person voting that did not exist. Based on this record, there is sufficient 

evidence to find that Alabama’s Photo ID Law is unlawful. 

Even so, there are disputed issues of material fact regarding the Photo ID 

Law’s purpose which prevent entry of summary judgment. The timing and 

sequence of events leading to the passage of the Photo ID Law contradict Secretary 

Merrill’s statements about the law’s purpose. See id. at 267 (“The specific 

sequence of events leading up to the challenged decision . . . may shed some light 

on the decisionmaker’s purposes.”). The Senate Rules Committee added HB 19 to 

the special order calendar on the last day of the 2011 Legislative Session. The 

Senate then invoked cloture and stymied any debate. Despite the rush to pass this 

important legislation, the State took no action to seek pre-clearance pursuant to the 

VRA as it was then required to do. But within days of the Supreme Court’s 

decision in Shelby County two years later, then-Secretary of State Bennet issued 

proposed administrative rules to implement the Photo ID Law. If the timing and 

sequence used by Alabama to pass and implement the Photo ID Law departed from 

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the normal procedural sequence, this “might afford evidence that improper 

purposes . . . play[ed] a role.” Id. Within the record before us, there are material 

factual disputes regarding that issue. Therefore, it is improper for the majority to 

simply credit Secretary Merrill’s word that nothing was uncommon about the way 

the law was passed. 

The legislative history of the Photo ID Law also provides an abundance of 

evidence of discriminatory intent such that a judge or jury at trial should consider 

the Alabama Legislature’s motivation. “The legislative or administrative history 

may be highly relevant, especially where there are contemporary statements by 

members of the decisionmaking body . . . .” Id. at 268. Senator Dixon, Senator 

Beason, Representative Rich, and other legislators’ overtly racist statements at and 

around the time the Photo ID Law was drafted, discussed, and enacted provide a 

window into the Legislature’s purpose. Plaintiffs should be able to present these 

statements at trial to ascertain whether Alabama intended to discriminate when it 

enacted the Photo ID Law. Instead, the majority opinion minimizes the weight of 

this evidence even though the lawmakers’ racist statements were made in the 

context of minority voting in Alabama.

In addressing foreseeability and whether the Alabama Legislature knew of 

the Photo ID Law’s likely disparate impact, the majority opinion disregards the 

fact that legislators for and against the law openly discussed the law’s likely impact 

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on Black voters. The majority also weighed the evidence to find that the 

Legislature’s delay in seeking preclearance occurred because the Legislature 

anticipated challenges to the law and needed time to obtain preclearance. Such 

credibility determinations are for judges and juries at trial, not courts at summary 

judgment. 

Alabama’s history of enacting laws designed to suppress people of color is 

well-documented. See Lynch v. Alabama, No. 08-S-450-NE, 2011 WL 13186739, 

at *12–18 (N.D. Ala. Nov. 7, 2011) (detailing Alabama’s extensive history of 

legislation designed to disenfranchise and limit the power and influence of its 

Black citizens), aff’d in part, vacated in part, remanded sub nom., I.L., 739 F.3d 

1273. The majority opinion essentially argues that we should not penalize 

Alabama’s legislators for Alabama’s past; rather, we should start with a clean slate 

when reviewing the Photo ID Law. But this is not what the law commands us to 

do. Alabama’s history of voter suppression is relevant here and provides a wealth 

of direct and circumstantial evidence that should be considered at trial.14 

For these reasons, I respectfully dissent.

14 I note that in finding Section 4(b) of the VRA unconstitutional, the Supreme Court did not 

hold that Alabama’s Legislature is incapable of passing racially discriminatory laws. Indeed, 

Chief Justice Roberts clearly stated that “voting discrimination still exists; no one doubts that.” 

Shelby Cnty., 570 U.S. at 536.

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